On my way to writing a post applying the UK Supreme Court’s decision on the Boris Johnson prorogation to the City of Toronto decision upholding the province’s reduction of wards, I decided to take a detour to examine the College of Midwives of British Columbia v. MaryMoon in which Madam Justice Sharma held that section 12.1(1) of the BC Health Professions Act (HPA) is unconstitutional because it contravenes section 2(b) of the Canadian Charter of Rights and Freedoms without justification.
Section 12.1(1) of the HPA states,
If a regulation under section 12 (2) (b) prescribes a title to be used exclusively by registrants of a college, a person other than a registrant of the college must not use the title, an abbreviation of the title or an equivalent of the title or abbreviation in another language
(a) to describe the person’s work,
(b) in association with or as part of another title describing the person’s work, or
(c) in association with a description of the person’s work.
Prior to 1995, midwives were not a regulated profession in British Columbia, but that year, the Midwives Regulation established the College of Midwives (“the College”). Section 3 of the Regulation provides, “The title ‘midwife’ is reserved for exclusive use by registrants.” The term “midwife” is not defined, but “midwifery” is: “the health profession in which a person provides [specified] services during normal pregnancy, labour, delivery and the post-partum period” (section 1). (The Regulation also recognizes “aboriginal midwifery”.) In other words, as members of a registered profession, midwives assist with pregnancy. Under section 12.1(2) of the HPA, if a regulation provides that the use of the title is limited by the regulation, no one can otherwise use the title. This is the case under the Midwives Regulation.
Pashta MaryMoon has provided services as a “death midwife” since long before the College of Midwives was established. She is not and does not purport to be a member of the College. She does not provide services related to pregnancy, including it seems (no mention was made of it one way or the other) services attendant on a death associated with pregnancy. I note that a midwife under the Regulation provides services only in relation to a “normal” pregnancy. She also argues that her services are not the provision of health care (although not relevant, it is interesting to note that Quebec justifies its medically assisted dying legislation as falling within provincial jurisdiction because it is a form of “healthcare”: see my post on the challenge to the assisted dying legislation in Truchon here. To be clear, Ms MaryMoon did not say that she provided assisted death.). The College sought a permanent injunction against her under section 52(1) of the HPA on the basis that she was using the term “midwife” in contravention of the HPA and Regulation.
Ms MaryMoon maintained that she was not violating the HPA/Regulation because she does not provide services in relation to pregnancy and the website describing her serves states explicitly that death midwives are not registered with any colleges of midwives and do not operate under relevant legislation relating to midwives; however, she does use the term “midwife”, even if qualified by the term “death”. Alternatively, she claimed, restriction on her use of the term “midwife” contravenes her guarantee of freedom of expression under the Charter.
Because Ms MaryMoon uses the term “midwife”, Sharma J. held that she contravenes the HPA since it prohibits the use even in conjunction with another term, which would distinguish the services provided from those provided by registrants of the College. Accordingly, Justice Sharma dedicates most of her decision to the constitutional analysis.
The focus of the freedom of expression analysis is not on the services Ms MaryMoon performs, but how she describes what she does: that is, as a “death midwife”. Given the low bar at this stage — that “any activity that conveys meaning is prima facie protected expression” — Ms MaryMoon’s use of the term “death midwife” is protected expression. (Emphasis in original) (para. 76) (Justice Sharma reviews the freedom of expression jurisprudence extensively and distinguishes two cases, Walker v. Prince Edward Island (PEISC (AD)) (aff’d by the Supreme Court of Canada) and the BC Court of Appeal decision in R. v. Baig, because they deal with misrepresentation. (I do not discuss this part of Sharma J.’s judgement here, but focus on her consideration of section 1 of the Charter, particularly the minimal impairment test.)
As far as section 1 is concerned, Sharma J. agrees that “the prohibition and limitations on the use of reserved titles in pursuit of protecting the public from unregulated health professionals” is a pressing and substantial objective (para. 141) and that there is a rational connection between regulating titles and protecting the public, that is, “regulating who can use occupational titles is logically connected to controlling who provides health care services” (para. 144).
Justice Sharma’s discussion of “minimal impairment” raises issues, however. As she explains, “[o]ne way of looking at this issue is to ask ‘whether there are less harmful means of achieving the legislative goal'” (para. 145). The Attorney General correctly submits that the court should consider whether the law falls “‘within a range of reasonable alternatives'”, although as Sharma J. points out, the deference to which the legislature is entitled is not “absolute” (para. 146). Thus the question is “whether the limitation in s. 12.1(1) on the use of occupational titles, absent the possibility of confusion, impairs freedom of expression to a minimal degree” (para. 147).
Reviewing the history of section 12.1(1) and related provisions, Sharma J. states that there is no evidence about why it was included, that is, why the prohibition on the use of titles needed to be expanded or broadened and that this restriction appears more directed at professional skirmishes than at the issue being addressed. The College argued that Ms MaryMoon could call herself a “doula to the dying” (for example); however, Sharma J. rejects this argument because it incorrectly puts the onus on Ms MaryMoon to show how she could avoid violating the HPA and it would also be a contravention of freedom of expression by compelling her to use a different way of describing herself (although she does not consider whether this contravention would be justified). Furthermore, the College and the Attorney General argue that Ms MaryMoon is not prevented from assisting people in relation to their dying and providing related services; rather, she is prevented from describing herself as a “midwife” in doing so. This is irrelevant according to Sharma J. because Ms MaryMoon is not asserting those activities were expressive and protected by the Charter.
This is perhaps the weakest part of the decision. In putting forward the various reasons for saying that the provision falls within a reasonable range to achieve the recognized legitimate objective, the College is indicating that the restriction is limited in scope (to title and not to activity) and that it is not necessary for Ms MaryMoon to use the term “midwife” to describe her work. It is difficult to avoid the conclusion that the use of “midwife” is a way of invoking the work and approach of those traditionally called midwives, although this is not addressed, and certainly the term “death midwife” has apparently been in use for a long time.
Having found that section 12.1(1) is unconstitutional, Sharma J. made a section 52(1) declaration to that effect and did not suspend the declaration. Justice Sharma rejected a less drastic remedy because there was no evidence to explain why the restricted use of titles was broadened to apply to all health profesions, “even if there was no potential for the public being misled” (para. 173). The evidence was that the College of Physicians would not prosecute someone using the title “tree surgeon” or “lawn doctor” because no one would confuse those “titles” with the title of “doctor” or “surgeon”, that is, no one would think they would actually practice medicine. As far as Sharma J. is concerned, this “underscores and compounds the lack of justification” for the impugned provision (para. 162, para. 174). As well, there was no evidence about risks to public safety by people using the restricted titles.
Justice Sharma refused the Attorney General’s request to make “‘additional submissions on the appropriate remedy, the scope of any declaration, and the necessity and desirability of a suspended declaration of invalidity'”, since the Attorney General should have made these submissions at the time; acceding to the request amounts to splitting the case (paras. 176 and 177). (In contrast, Sharma J. admits certain of Ms MaryMoon’s documents despite the College and the Attorney General’s objections — objections she appears to find in some aspects valid — apparently because Ms MaryMoon lives on a pension and had “difficulty … marshal[ling] resources to defend against the petition (para. 121). Ms MaryMoon had a lawyer, but it seems did much of the research herself.)
This means that attempts to restrict titles under the relevant health profession regulations and according to the requirements of the health profession colleges are of no force or effect as of the date of the decision. However, it is still a contravention to use a title in accordance with any limits or conditions on the use of the title (section 12.1(2) HPA or to use a title in a way that implies the individual is a registrant of or association with the college (section 12.1(3) HPA).
This is not a case in which someone seeks to practice a health profession without registering with the relevant college. The issue is whether, despite statements to the contrary, the use of the term “midwife” implies that the individual using the term is subject to the obligations and protections provided by the College and to any complaint regime under the legislation and regulations. Regulated midwives have access to tests and hospitals, for example.
Regulation of midwives is now extensive across Canada. While someone seeking the services of a midwife may not be familiar with the technicalities of the regulatory regime, she will have recourse to the regime should she have any concern about the way the services are provided. The health professions regime, just as the legal professions regime, establishes standards that the public are entitled to expect members to meet and complaint processes for when they do not. Not everyone can “hang out a shingle” as a medical doctor, nurse practitioner, lawyer or any number of other professions, or seek to provide the same or similar services as those encompassed by the regulations.
Here context is important. As the College of Physicians explained, it would not likely prosecute a “tree surgeon” because no one would think a tree surgeon was practising medicine. However, the use of the term “death midwife” may be different: whatever the merits of the work, is it enough to add the word “death” to be clear that the provider is not providing services as part of the range of midwifery (here it is important to remember that relevant websites state that the death midwives are not associated with any colleges of midwives). Is it enough that death midwives say they are not “midwives” for the public to understand that they are not subject to midwife college requirements? These questions, whatever the answer, show that it is difficult to isolate a particular provision without considering the whole.
On the other hand, the professional regimes restrict practice to those who meet the requirements and belong, as some see it, to “the club”. The professionalization of midwifery is seen by some as a denial of activity that women provided for each other outside medicalization, although the impetus for regulation stemmed in part from “a series of infant deaths during home births involving midwives” in the 1980s (para. 100). However, regulated midwives provide services in much the same way — or perhaps more effectively because of their access to other services — as midwives did traditionally (see a description of midwifery here). Today midwives offer medical services and doulas offer various forms of support to the woman and women may have the assistance of both. Ms MaryMoon’s description of her services is more consistent with what we think a doula provides. The concept of a midwife today, however, suggests the provision of medical services, albeit provided differently from those provided by a doctor or other health professional, something that a death midwife does not do. Ms MaryMoon is unable to provide most, if not all, of the services identified under section 5 of the Regulation as a registrant in the College of Midwives is able to do, not all of which are specific to care of a pregnant woman (although many are relevant only to that context).
In broad terms, this case raises the question of what happens when “modern” developments outpace traditional practices. Before midwifery was regulated and midwives were recognized as health professionals and trained accordingly to provide medical services, it followed customary practices passed on by generations. The BC Midwife Regulation acknowledges that “aboriginal midwifery” is more likely to follow “traditional practices including the use and administration of traditional herbs and medicines and other cultural and spiritual practices”, along with contemporary practices. There is therefore a different “title” or nomenclature for Indigenous midwifery, which otherwise accords with the Regulation. The concept and practice of midwifery has changed since Ms MaryMoon began her work as a “death midwife”; there is a greater gap between midwifery related to pregnancy and that related to death than there was and that title is now at odds with regulation and practice. This decision stands for that, raising concerns from the perspective of public understanding.