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...