The College of Midwives of British Columbia has failed in an attempt for a permanent injunction to stop Pashta MaryMoon using the term “midwife” when she provides services as a “death midwife”.

Patricia Hughes, founding Executive Director of the Law Commission of Ontario says that the case raises the question of what happens when “modern” developments outplace traditional practices.

In the Supreme Court of British Columbia’s decision in College of Midwives of British Columbia v MaryMoon 2019 BCSC 1670, Sharma J held that the use of the title “death midwife” by a non-member of the College of Midwives does violate s12.1(1) of the Health Professions Act 1996 (HPA).

Section 12.1 (prohibition and limitation – use of reserved titles) of the HPA bars someone from using the term midwife “in association with or as part of another title describing the person’s work” (section 12.1(1) (b)).

However, she said section 12.1(1) (to describe the person’s work) impinges the freedom of expression as expressed in section 2(b) (fundamental freedoms) of the Canadian Charter of Rights and Freedoms and is not saved by section 1 (subject to reasonable limits provision). Accordingly, she granted a declaration pursuant to s52 of the Constitution Act 1982 that section 12.1(1) of the HPA is of no force or effect.

Ms MaryMoon received formal training as a death midwife in the United Staates in 2013 and is a founder and executive director of the Canadian Integrative Network for Death Education and Alternatives (CINDEA) which launched a website in 2011.  She has been providing what she calls “death care services” for over 40 years.

In June 2016 the College sent a letter to CINDEA requesting that it cease using the term "midwife". As part of her response Ms MaryMoon pointed to a disclaimer on the website that makes it clear that death midwives are not health professionals and are not registered with any Colleges of Midwives in Canada, nor do they operate under the Health Professionals Acts or the Midwifery Acts.

The College said that the disclaimer did not rectify the situation because the public had a right to know that anyone using the term "midwife" was registered with it.

HDA violation

Before 1995, midwives were not a regulated profession in British Columbia, but that year the Midwives Regulation established the College. The title of "midwife" is reserved for the exclusive use by registrants and midwifery is defined as “the health profession in which a person provides [specified] services during normal pregnancy, labour, delivery and the post-partum period”.

Sharma J held that the use of the term “death midwife” did contravene 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.

Charter rights

After examining case law from the Supreme Court in relation to freedom of expression, and distinguishing two cases because they dealt with misrepresentation, Sharma J applied Edmonton Journal v Alberta (Attorney General), [1989] 2 SCR 1326, Canadian Broadcasting Corp v Canada (Attorney General) 2011 SCC 2, and Irwin Toy Ltd v Quebec (Attorney General) [1989] 1 SCR 927 which sets out the test for determining whether section 2(b) has been infringed. Expression can be conveyed “through an infinite variety of forms of expression: for example, the written or spoken word, the arts, and even physical gestures or acts”. Any activity may amount to expression (Irwin Toy at 969-970).

In summary Sharma J said that “as soon as an action is capable of communicating anything to another person, it has meaning and is protected expression. In my view, when the respondent refers to herself as a 'death midwife' there can be no doubt that she is conveying meaning”.

She said the Supreme Court has been very clear that short of physical violence or threats of violence, any activity that conveys meaning is protected expression. Accordingly, she concluded that the legislation’s prohibition of her use of the term “death midwife” does violate section 2(b) of the Charter.

Sharma J also rejected the argument by the College that Ms MaryMoon could call herself a “doula to the dying” because it incorrectly puts the burden on Ms MaryMoon to show how she could avoid violating the HPA and it would be a contravention of freedom of expression by compelling her to use a different way of describing herself.