IN THE SUPREME COURT OF BRITISH COLUMBIA
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Citation: |
College of Midwives of British Columbia v. MaryMoon, |
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2019 BCSC 1670 |
Date: 20191001
Docket: S183011
Registry: Vancouver
Between:
College of Midwives of British Columbia
Petitioner
And
Pashta MaryMoon and Patricia Keith aka Tricia Keith
Respondents
Before: The Honourable Madam Justice Sharma
(in Chambers)
Reasons for Judgment
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Counsel for Petitioner: |
L.C. Fong, |
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Counsel for Respondent, P. MaryMoon |
M.J. Walton |
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Counsel for the Attorney General of British Columbia: |
M. Rankin, |
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Counsel for the Intervenor, College of Physicians and Surgeons of B.C.: |
T. Bant, |
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Place and Date of Hearing: |
Vancouver, B.C. November 29-30, 2018 |
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Place and Date of Judgment: |
Vancouver, B.C. October 1, 2019 |
Table of Contents
B. Correspondence Between the Respondent and the College
III. IS THE RESPONDENT VIOLATING THE HPA?
IV. DOES S. 12.1(1) OF THE HPA VIOLATE S.2(b) OF THE CHARTER?
A. Decisions in Walker and Baig
B. Are Walker and Baig Binding Authority?
V. DOES S. 12.1(1) VIOLATE SECTION 7 OF THE CHARTER?
VI. IS THE VIOLATION OF FREEDOM OF EXPRESSION SAVED BY S. 1?
1. The Regulation of Health Professions
1. Pressing and Substantial Objective
VII. WHAT REMEDY IS APPROPRIATE?
[1] The respondent, Pashta MaryMoon, is a self-described death midwife. She is not a member of the petitioner, the College of Midwives of British Columbia (the “College”). The College says that by using the term “midwife” to describe her work while not being a member of the College, the respondent is violating the applicable legislation. The College seeks a permanent injunction against the respondent using the term midwife to describe her work in any way.
[2] The respondent’s position is that she is not violating the legislation because her work has nothing to do with pregnant women or delivering babies. In the alternative, she submits that any prohibition on her use of the term midwife violates her right to freedom of expression.
[3] The Attorney General of British Columbia appears in this petition as a matter of right and submits the legislation does not infringe freedom of expression but, in the alternative, if it does, that infringement is a reasonable limit on the freedom saved by s. 1 of the Charter. The College of Physicians and Surgeons (the “Intervenor”) received intervenor status on August 15, 2018. It supports the positions of the College and the Attorney General.
[4] In summary, I agree with the College that the respondent has violated the applicable legislation by her use of the term “midwife”. However, I find that the legislative restriction violates s. 2(b) of the Charter and that violation is not a reasonable limit pursuant to s. 1 of the Charter and is therefore invalid.
[5] The respondent has been providing what she calls “deathcare services” for more than 40 years. She deposed that death midwife is “the only title” that she uses to identify her vocation as a “deathcare provider”.
[6] She has a degree in world religions from Carleton University, where her research was focused on “the modern approach to death and the taboos around it.” She received formal training as a death midwife in the USA in 2013. She has been a lay minister with the Unity Church in Ottawa, and, during the 1980s, helped care for people suffering from HIV/AIDS. She worked for 20 years in federal prisons as a chaplain. She also worked for the Royal Jubilee Hospital’s spiritual care team in the renal ward, where, according to her, many patients died while in care. In 2004, she co-founded Pagan Pastoral Outreach which included on its website death midwifery as a form of pastoral care.
[7] The respondent is a founder and the executive director of the Canadian Integrative Network for Death Education and Alternatives (“CINDEA”). In 2011, CINDEA launched a website. On its opening page under “Introduction to CINDEA” is the following:
CINDEA is a Canadian-based organization, which respects the wisdom of ancient death traditions and encourages the renewal of older death practices that are appropriate to our modern-day life. In the past, communities cared fo[r] [their own] dying folk; and creatively adapted, that approach to death is still an option available to us. CINDEA 's perspective is one of a wide range of initiatives that are drawing our culture into a deeper relationship with nature and the cycles of life and death — the modern version of "a good death" for all involved in it.
[8] The website notes that it uses the word “pan-death” to refer to “the spectrum of dying and death care” (before, during and after death).” The website has internal links to topics including Pan-Death Movement, Death Midwifery, Advance Care Planning, and Post-Death Care and Home Funerals.
[9] The respondent has also referred to herself as a death midwife on other websites and on Twitter.
[10] On June 4, 2016, the College sent a letter by email to CINDEA formally requesting that it cease using the term midwife. As part of her response to that email, in an email dated August 11, 2016, the respondent pointed out a disclaimer on the website, which states:
Disclaimer: The practice of death midwives addresses the opposite end of life from (birth) midwives, although they share a similar philosophy. Death midwives are not registered with any of the Colleges of Midwives in Canada, nor do they operate under the Health Professions Acts or the Midwifery Acts for any of the provinces or territories.
[11] On the opening page of the website the disclaimer states:
Disclaimer: The role and practices of death midwives are frequently referred to on this website. Death midwives are not conventional midwives (who deal with birthing) or health professionals, nor are they registered with any of the Colleges of Midwives in Canada.
[12] The respondent also pointed to a shorter version of the disclaimer that appears several other places on the CINDEA website which states:
Death midwives are not health professionals, nor are they registered with any of the Colleges of Midwives in Canada.
[13] The College responded by letter dated August 15, 2016. The College stated its view that the disclaimer did not rectify the situation because the public had a right to know that anyone using the term midwife is registered with it.
[14] On August 24, 2016, the respondent indicated she was aware of the legislation, but she did not state she would stop using the term. On September 20, 2019, the College sent further correspondence to the respondent asking that she cease and desist from using the term midwife. On September 26, 2016, the respondent acknowledged receipt of the letter and again acknowledged that she was aware of the legislation.
[15] Pursuant to s. 12(1) of the Health Professions Act, R.S.B.C. 1996, c. 183, [HPA], the Lieutenant Governor in Council may designate a profession as a “health profession”. Section 12(2) then allows the minister, by regulation, to prescribe a large number of things in relation to a designated health professional, including at subsection (b) a “reserved title” that only registrants of a particular college can use. Section 12.1 of the HPA (which was added in 2008) provides a prohibition and limitations on the use of the reserved title, and certain limited exceptions to those restrictions are set out in s. 12.2.
[16] For convenience, I reproduce s. 12.1:
Prohibition and limitation — use of reserved titles
12.1 (1) 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.
(2) If a regulation under section 12 (2) (b.1) prescribes a limit or condition respecting the use of a title, the title must not be used except in accordance with the regulation.
(3) A person other than a registrant of a college must not use a name, title,
description or abbreviation of a name or title, or an equivalent of a name or title in another language, in any manner that expresses or implies that he or she is a registrant or associated with the college.
[17] In simple terms, the reserved title system means that in order to describe oneself as working as a “dentist”, one must be registered with the College of Dentistry, and to describe oneself as working as a “pharmacist”, one must be registered with the College of Pharmacists.[1]
[18] Like dentistry and pharmacy, midwifery is a health profession pursuant to the HPA. In March 1995, the Legislature enacted the Midwives Regulation, B.C. Reg. 281/2008 (originally B.C. Reg. 103/95), which established the College of Midwives. The College became operational in August 1997, and the first registrants were registered January 1, 1998. Pursuant to s. 3 of the Midwives Regulation, “midwife” is a reserved title.
[19] The services a midwife can perform are also prescribed and stipulated in s. 1 of the Midwives Regulation:
"midwifery" means the health profession in which a person provides the following services during normal pregnancy, labour, delivery and the post-partum period:
(a) assessment, monitoring and care for women, newborns and infants, including the carrying out of appropriate emergency measures when necessary;
(b) counselling, supporting and advising women, including provision of advice and information regarding care for newborns and infants;
(c) conducting internal examinations of women, performing episiotomies and amniotomies and repairing episiotomies and simple lacerations;
(d) contraceptive services for women during the 3 months following a birth;
[20] Finally, s. 52(1) of the HPA allows a person to apply for an injunction to “restrain a person from contravening any provision of this Act, the regulations or the bylaws.” Relying on this provision, the College seeks a permanent injunction against the respondent for her violation of s. 12.1. Although the petition makes reference to s. 12.1(3) as one of the grounds for granting the injunction, counsel for the College clarified during oral submissions (and as reflected in its written submissions) that it relies only on s. 12.1(1).
[21] There is no dispute that the respondent describes her vocation as being a “death midwife”. Nor is it disputed that she is not registered with the College. It is also not contested that she has never performed, and does not purport to perform, any midwifery services for pregnant women at any stage of pregnancy and delivery.
[22] Nevertheless, the College submits her use of the term “death midwife” violates the legislation. In particular, the College says that the respondent is in violation of s. 12.1(1)(b) of the HPA, which prevents a person from using midwife “in association with or as part of another title describing the person's work”. The College says that this is precisely what the respondent is doing when she calls herself a death midwife.
[23] The respondent points out that she is not performing services within the scope of a midwife’s practice. However, nothing in s. 12.1(1) restricts the prohibition on using a reserved title to those who are performing services within the scope of a college’s practice. The College acknowledges that the use of midwife to describe one’s work to any extent violates the legislation, even if there is no confusion that the person might be a registrant. To buttress that point, the College asserts that other uses (such as “divorce midwife”) would also violate the HPA.
[24] The respondent described her work as that of a death midwife, thereby using “midwife” as part of a title describing her work. Clearly, she is violating s. 12(1)(b) of the HPA, which prohibits the use of a reserved title “in association with or as part of another title describing the person’s work” (emphasis added).
[25] The respondent next points out that s. 12.1(3) of the legislation only applies where the use of the title expresses or implies that a person is a registrant of the College, indicating the need for the use of midwife to be inherently confusing or misleading. I understood her to suggest that ought to influence how s. 12.1(1) is applied and interpreted.
[26] I disagree. Section 12.1(1) is not ambiguous, so there is no room to read anything into it. The two subsections are distinct and clear. Section 12.1(1) is a prohibition on using “midwife” (or any reserved titled) to describe a person’s work, but imposes no requirement that there also be any confusion or lack of clarity in how the term is used. Section 12.1(3) does not require that the title be used together with a description of work, but restricts any use of the title that could be misleading as to a person’s qualifications. The College emphasized in its submissions that the two subsections are intended to operate differently.
[27] This distinction – between restrictions that only apply where there is an implication of registration and restrictions that apply in any event – are also why two cases cited by the respondent are distinguishable. In both cases, the restriction at issue required an implication of membership in the profession, but the court found that there was no such implication: Association of Professional Engineers, Geologists and Geophysicists of Alberta v. Merhej, 2001 ABQB 1062, aff’d 2003 ABCA 360; Assn. of Professional Engineers of the Province of British Columbia v. Inter-Provincial Power Engineering Assn., [1978] B.C.J. No. 379 (C.A.).
[28] Finally, much of the respondent’s submissions on this issue were focused on an examination of the underlying policies of the HPA and what she sees as the absence of a specific policy consideration for s. 12.1(1) of the HPA. Those submissions are not relevant to the issue of the proper interpretation or application of the legislation at this stage, but relate to the constitutional analysis addressed later in these reasons.
[29] The College confirmed that it was not relying on s. 12.1(3) of the HPA for its injunction. However, it asserts that the respondent’s use of midwife may lead to an assumption that she had some association with the College. Specifically, the College submits on the CINDEA website, Ms. MaryMoon uses midwife in the description “precisely because the term would carry with it a reputation that allows the public to attribute characteristics or functions of midwives to consultants [who] call themselves ‘death midwives’” (emphasis added). As I understand it, that allegation is based, in part, on the following extract from the website:
The CINDEA definition seeks to honour and parallel the role of a birth midwife – while acknowledging that the comparable aspects of a death midwife’s role to the medical side of a birth midwife’s responsibilities are presently offered by palliative care nurses, doctors, physiotherapists, etc.
[30] The College also points to an article available on CINDEA’s website and claims the term death midwife was chosen by CINDEA “because laypeople recognize what a death midwife might do, because they already know what a birth midwife does”. The respondent is one of the co-authors of that article.
[31] To the extent the College submits the respondent’s use of “death midwife” via the CINDEA website may cause people to assume an association with birth midwives, I disagree. If one reads the webpages from which the extracts are taken, it is very difficult to imagine anyone would come away believing that a “death midwife” is either a member of the College or a health professional. Among other things, the disclaimers are frequent on the website and make that point clearly. Moreover, the website is so clearly devoted to topics related to death.
[32] However, the College is correct that a lack of confusion is irrelevant to its grounds for seeking an injunction because that is not a requirement under s. 12.1(1). Accordingly, I agree that the respondent’s use of “death midwife” contravenes s. 12.1(1) of the HPA.
[33] The College and the Attorney General rely on two cases that they assert are binding on this Court and mandate a conclusion that s. 12.1 of the HPA does not infringe s. 2(b) of the Charter: Walker v. Prince Edward Island (1993), 107 D.L.R. (4th) 69 (P.E.I.S.C.(A.D.)), aff’d [1995] 2 S.C.R. 407 [Walker], and R. v. Baig (1992), 78 C.C.C. (3d) 260 (B.C.C.A.). The respondent submits both cases are distinguishable because they deal with instances of misrepresentation, whereas she is not suggesting that she is a registrant of the College.
[34] Before turning to those cases, I review the Supreme Court of Canada’s jurisprudence on freedom of expression, which has remained unchanged for 30 years. It is worth noting that the Supreme Court of Canada has emphasized the primacy of protecting expression in a democratic society. In a passage often repeated, Justice Cory put it this way in Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326 at 1336:
It is difficult to imagine a guaranteed right more important to a democratic society than freedom of expression. Indeed a democracy cannot exist without that freedom to express new ideas and to put forward opinions about the functioning of public institutions. The concept of free and uninhibited speech permeates all truly democratic societies and institutions. The vital importance of the concept cannot be over-emphasized. No doubt that was the reason why the framers of the Charter set forth s. 2(b) in absolute terms which distinguishes it, for example, from s. 8 of the Charter which guarantees the qualified right to be secure from unreasonable search. It seems that the rights enshrined in s. 2(b) should therefore only be restricted in the clearest of circumstances.
As pointed out by Chief Justice Dickson in R. v. Keegstra, [1990] 3 S.C.R. 697 at 726, the Supreme Court recognized the crucial role of freedom of expression even before the Charter was enacted:
That the freedom to express oneself openly and fully is of crucial importance in a free and democratic society was recognized by Canadian courts prior to the enactment of the Charter. The treatment of freedom of expression by this Court in both division of powers and other cases was examined in Dolphin Delivery Ltd., supra, at pp. 583-88, and it was noted that well before the advent of the Charter before even the Canadian Bill of Rights was passed by Parliament in 1960, S.C. 1960, c. 44 -- freedom of expression was seen as an essential value of Canadian parliamentary democracy. This freedom was thus protected by the Canadian judiciary to the extent possible before its entrenchment in the Charter, and occasionally even appeared to take on the guise of a constitutionally protected freedom (see, e.g., Reference re Alberta Statutes, [1938] S.C.R. 100, per Duff C.J., at pp. 132-33; and Switzman v. Elbling, [1957] S.C.R. 285, per Abbott J., at p. 326).
[35] In Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, the Supreme Court set out the test for determining whether s. 2(b) has been infringed: (i) does the activity in question convey meaning, and; (ii) if so, does the impugned legislation, in either purpose or effect, restrict that expression? This test remains the basic approach to determining whether s. 2(b) has been infringed, although it was further clarified by Canadian Broadcasting Corp. v. Canada (Attorney General), 2011 SCC 2 at para. 38:
(1) Does the activity in question have expressive content, thereby bringing it, prima facie, within the scope of s. 2(b) protection? (2) Is the activity excluded from that protection as a result of either the location or the method of expression? (3) If the activity is protected, does an infringement of the protected right result from either the purpose or the effect of the government action?
[36] No one suggested in this case that the activity in question is excluded from protection either because of the method or location of the expression. Thus, the two-step analysis from Irwin Toy applies.
[37] The Supreme Court of Canada has steadily outlined a broad ambit of protection for expression. Since the inception of the Charter, the Supreme Court has consistently rejected any narrowing of expression, with the exception of physical violence or threats of violence: Kent Roach & David Schneiderman, “Freedom of Expression in Canada” (2013) 61:2 Sup Ct L Rev 429. The protection is so wide that the Supreme Court of Canada has confirmed that promoting hatred against identifiable groups of people, publishing false news, obscenity, and even child pornography are all activities protected under the rubric of expression in Canada: R. v. Keegstra, [1990] 3 S.C.R. 697; Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892; R. v. Zundel, [1992] 2 S.C.R. 731; R. v. Butler, [1992] 1 S.C.R. 452; R. v. Sharpe, 2001 SCC 2. The controversy in those cases was not whether the impugned expression was protected, but whether the government’s method of restricting it was a limit that could be justified in a free and democratic society under s. 1 of the Charter.
[38] As explained in Irwin Toy, 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 969-70):
Indeed, if the activity conveys or attempts to convey a meaning, it has expressive content and prima facie falls within the scope of the guarantee. Of course, while most human activity combines expressive and physical elements, some human activity is purely physical and does not convey or attempt to convey meaning. It might be difficult to characterize certain day-to-day tasks, like parking a car, as having expressive content. To bring such activity within the protected sphere, the plaintiff would have to show that it was performed to convey a meaning. For example, an unmarried person might, as part of a public protest, park in a zone reserved for spouses of government employees in order to express dissatisfaction or outrage at the chosen method of allocating a limited resource. If that person could demonstrate that his activity did in fact have expressive content, he would, at this stage, be within the protected sphere and the s. 2 (b) challenge would proceed.
[39] Thus, someone challenging government action under s. 2(b) of the Charter has a low burden to establish the impugned activity is expression: the activity simply has to convey meaning. The next inquiry is to determine the interplay between the legislation and the expressive activity. If the legislation’s purpose is to restrict the expression, then the legislation violates s. 2(b) of the Charter and it falls to government to establish that the restriction is reasonable pursuant to s. 1.
[40] However, even if the purpose of the legislation is not to restrict expression, the legislation will offend the Charter if any of its effects do so. To demonstrate that nexus, the person alleging the infringement must convince the court that the activity promotes one of the “principles” or “values” of expression (Irwin Toy at 976-77):
Even if the government's purpose was not to control or restrict attempts to convey a meaning, the Court must still decide whether the effect of the government action was to restrict the plaintiff's free expression. Here, the burden is on the plaintiff to demonstrate that such an effect occurred. In order so to demonstrate, a plaintiff must state her claim with reference to the principles and values underlying the freedom.
We have already discussed the nature of the principles and values underlying the vigilant protection of free expression in a society such as ours. They were also discussed by the Court in Ford (at pp. 765-67), and can be summarized as follows: (1) seeking and attaining the truth is an inherently good activity; (2) participation in social and political decision-making is to be fostered and encouraged; and (3) the diversity in forms of individual self-fulfillment and human flourishing ought to be cultivated in an essentially tolerant, indeed welcoming, environment not only for the sake of those who convey a meaning, but also for the sake of those to whom it is conveyed. In showing that the effect of the government's action was to restrict her free expression, a plaintiff must demonstrate that her activity promotes at least one of these principles. It is not enough that shouting, for example, has an expressive element. If the plaintiff challenges the effect of government action to control noise, presuming that action to have a purpose neutral as to expression, she must show that her aim was to convey a meaning reflective of the principles underlying freedom of expression. The precise and complete articulation of what kinds of activity promote these principles is, of course, a matter for judicial appreciation to be developed on a case by case basis. But the plaintiff must at least identify the meaning being conveyed and how it relates to the pursuit of truth, participation in the community, or individual self-fulfillment and human flourishing.
[41] The Supreme Court explained the distinction between purpose and effect as follows (at 974-5):
If the government's purpose is to restrict the content of expression by singling out particular meanings that are not to be conveyed, it necessarily limits the guarantee of free expression. If the government's purpose is to restrict a form of expression in order to control access by others to the meaning being conveyed or to control the ability of the one conveying the meaning to do so, it also limits the guarantee. On the other hand, where the government aims to control only the physical consequences of certain human activity, regardless of the meaning being conveyed, its purpose is not to control expression. Archibald Cox has described the distinction as follows (Freedom of Expression (1981), at pp. 59-60):
The bold line . . . between restrictions upon publication and regulation of the time, place or manner of expression tied to content, on the one hand, and regulation of time, place, or manner of expression regardless of content, on the other hand, reflects the difference between the state's usually impermissible effort to suppress "harmful" information, ideas, or emotions and the state's often justifiable desire to secure other interests against interference from the noise and the physical intrusions that accompany speech, regardless of the information, ideas, or emotions expressed.
Thus, for example, a rule against handing out pamphlets is a restriction on a manner of expression and is "tied to content", even if that restriction purports to control litter. The rule aims to control access by others to a meaning being conveyed as well as to control the ability of the pamphleteer to convey a meaning. To restrict this form of expression, handing out pamphlets, entails restricting its content. By contrast, a rule against littering is not a restriction "tied to content". It aims to control the physical consequences of certain conduct regardless of whether that conduct attempts to convey meaning. To restrict littering as a "manner of expression" need not lead inexorably to restricting a content.
[42] Thus, the contested aspect of most s. 2(b) cases is not whether activity falls under the umbrella of protected expression, but whether government measures restricting the expression can meet the legal test under s. 1. It is in this conceptual framework that Ms. MaryMoon’s contention that the Charter protects her right to call herself a death midwife must be analyzed.
[43] As a starting point it would seem without dispute that legislation that restricts who can use a set of defined words (reserved titles) to describe their work has as its purpose, the restriction of expression. The only reason that has not been conceded in this case is because of the reliance by the College and Attorney General on the two cases they say are binding on me: Walker and Baig.
[44] In Walker, the Prince Edward Island Supreme Court (Appeal Division) addressed the issue of whether the respondents, who were certified general accountants, had “full rights to practice public accountancy in Prince Edward Island”. Such rights had “been reserved to members of the Institute of Chartered Accounts” by way of s. 14(1) of the Public Accounting and Auditing Act, R.S.P.E.I. 1988, c. P-28. Section 14(1) provided:
14. (1) No person shall practise as or usurp the functions of a public accountant or in any way represent himself or any firm of which he is a partner to be, or act in such manner as to lead to the belief that he or it is, a public accountant or firm of public accountants, unless he is
(a) a member of the Institute; or
(b) the holder of a license to practise issued by the Institute which is in full force and effect.
[45] The respondent persuaded the trial judge that s. 14(1) infringed s. 2(b) of the Charter, but the appeal was allowed. The PEISCAD accepted that performing public accounting and auditing may well be expression, but nonetheless found that there was no s. 2(b) violation. It concluded that the impugned statute did “not prohibit anyone from expressing themselves about any accounting matter”, but instead only restricted “the capacity in which they can do so”:
It therefore seems that at least the reporting functions of public accounting and auditing may fall within the ambit of s. 2(b). However, in my view, s. 14(1) of the Public Accounting and Auditing Act does not contravene s. 2(b) of the Charter even if some aspects of public accounting and auditing do meet the very broad definition given to the term "expression" by the Supreme Court of Canada in Irwin Toy. I have come to that conclusion because s. 14(1) does not prohibit anyone from expressing themselves about any accounting matter; it only restricts the capacity in which they can do so. What it does is prohibit those who are not authorized by the Institute from carrying on business as, laying claim to the authority of, or representing themselves to be public accountants. Thus, the respondents are free to express themselves on any of the matters referred to in s. 1(e) so long as they do not purport to be doing so with the authority of, or in the capacity of, a public accountant.
[Emphasis added.]
[46] The PEISCAD’s decision in Walker was appealed to the Supreme Court of Canada. The appeal was dismissed. The entirety of the Court’s reasons, indexed at [1995] 2 S.C.R. 407, is as follows:
LAMER C.J. ‑‑ In light of our previous decisions as regards ss. 2(b), 6 and 7 of the Canadian Charter of Rights and Freedoms, we are all of the view that there has been no restriction to those rights in this case. The constitutional questions are answered as follows:
1. Does s. 14(1) of the Public Accounting and Auditing Act, R.S.P.E.I. 1988, c. P‑28, limit the appellants' rights guaranteed by ss. 2(b), 6 or 7 of the Canadian Charter of Rights and Freedoms?
No.
2. If the answer to question 1 is in the affirmative, is s. 14(1) nevertheless justified by s. 1 of the Canadian Charter of Rights and Freedoms?
The first question is answered in the negative. The second question, therefore, does not arise.
The appeal is accordingly dismissed with costs.
[47] As a result, the College and the Attorney General say, Walker is binding authority, and accordingly, the respondent’s argument with respect to s. 2(b) must fail.
[48] In Baig, the accused was prevented by the Medical Practitioners Act, R.S.B.C. 1979, c. 254, and the Psychologists Act, R.S.B.C. 1979, c. 342,[2] from using the title “Dr.”, and from advertising himself as a psychologist. The accused challenged the constitutionality of both statutes, arguing, inter alia, that they violated s. 2(b). The Court of Appeal disagreed:
I do not think it can be said in this case there is a right to call oneself a doctor or psychologist, which is a protected right under the rubric of freedom of expression. This is not, in my opinion, an activity that is performed to convey a meaning as that phrase is used in Irwin Toy. What is being conveyed is the title which connotes certain qualifications. In my view, a title does not have expressive content in that it does no more than describe the person holding it. Even if it could be said that a prohibition against calling oneself a “Dr” or “psychologist” may in a broad view be an infringement of freedom of expression, I do not think that in this case the appellant can assert a violation of s. 2(b) of the Charter. I say this because in my opinion the appellant calling himself "Dr" or "psychologist" or any name that would represent himself as a psychologist, in conjunction with an advertisement as to treatment of depression, emotional conflict and getting off medication, as is the case here, is misrepresenting himself to the public at large, that representation being that he is qualified in British Columbia as a medical doctor or as a psychologist.
In my opinion, freedom of expression cannot include a right to misrepresent one's professional qualifications to the public.
I am also of the view that allowing the appellant to use the titles ‘Dr’ or ‘psychologist’ or any term that would represent himself as a psychologist would not further any of the goals of freedom of expression.
[49] The accused in Baig was charged and prosecuted for violating the legislation in place at that time because he was not qualified to practice medicine or psychology.
[50] The provincial court judge acquitted Mr. Baig, finding the evidence did not support any of the charges. However, that judge also concluded the Psychologist Act contravened s. 15(1) of the Charter, and was not saved by s. 1. These conclusions were overturned: (February 5, 1990), New Westminster Registry No. X024122 (B.C.S.C.) (per Finch J.).
[51] Mr. Baig appealed to the Court of Appeal, and he raised for the first-time arguments that the legislation infringed both sections 7 and s. 2(b) of the Charter.
[52] The Court of Appeal reproduced a portion of Mr. Baig’s submissions regarding freedom of expression at 274-75:
The Appellant has gone to great lengths in his attempt to bring the discovery of psychotransformational therapy to the attention of the medical profession, the psychological association, and the public.
…
The impugned legislation purports to prohibit the Appellant from publishing his discovery and hence prohibits the expression of ideas and restricts the access of consumers to information that is necessary and relevant to their choice of treatment.
[53] Thus, Mr. Baig’s challenge pursuant to s. 2(b) appeared to focus on his contention that he was prevented from publishing his beliefs. The Court of Appeal did not find his contention was accurate (at 276):
In my opinion, the purpose of the Acts and the sections in question is not to prohibit the appellant from publishing the views he holds but rather to prohibit him from holding himself out as, and practising in the fields of, psychology and medicine. The appellant is free to publish information about psychotransformational therapy, but in doing this he is prevented from calling himself or holding himself out as a medical doctor or a psychologist where, in the case of a psychologist, he renders services for a fee or a reward as is the case here.
[Emphasis added]
[54] As mentioned earlier, the College submits that Walker and Baig stand for the proposition that legislation preventing a person from using a particular occupational title does not violate s. 2(b). The Attorney General adopts the submission of the College, but further submits the principles in Re Hansard Spruce Mills Ltd., [1954] 4 D.L.R. 590 (B.C.S.C.), compel this Court to follow both Walker and Baig.
[55] The rule from Hansard Spruce Mills does not arise because that case deals with the convention of not disagreeing with a decision made by the same level of court. I presume the Attorney General meant to rely more generally on the concept of stare decisis. In its most basic form, that doctrine dictates that this Court is bound by a higher court’s ruling on a question of law. However, neither principle applies if a case put forward as binding is distinguishable. I find that to be the situation before me.
[56] Walker and Baig are distinguishable in the same manner as cases relied upon by the respondent (see above, para. 27). The people found to have violated the legislation in those cases sought not only to use the regulated titles, but to engage in the regulated professions notwithstanding that they were not members of the respective college.
[57] In contrast, Ms. MaryMoon does not seek membership in the College, and no one suggests she wants to deliver babies or provide care for pregnant women. Nor is there is any evidence that anyone has ever erroneously believed she provides such services. Her violation of the legislation in this case is based purely on her describing herself as a “death midwife” regardless of what services she provides.
[58] More importantly, neither Baig nor Walker addressed the issue of a restraint on the use of professional titles absent the element of public confusion. As noted earlier, there was no equivalent s. 12.1(1) in the HPA until 2008. Both cases dealt with legislation that was closer in operation to s. 12.1(3).
[59] Those are sufficient reasons to distinguish both cases. Because the College and Attorney General relied so heavily on what they said was the binding nature of both cases, it is prudent to explain my conclusion in more detail.
[60] In Walker, the PEISCAD viewed the issue before it as whether the Charter entitled the respondents “the right to practice public accountancy in the Province of Prince Edward Island”, or, as it later described it, the right to have one’s ideas “recognized as authoritative” by the government or the relevant regulatory body. Thus, the impugned activity in the case was the combination of using a reserved title, and engaging in a regulated profession without qualification.
[61] I agree that the Charter’s protection of expression does not place a positive obligation on the government to recognize your expertise. That does not, however, address the assertion of a distinct right to proclaim that one is a public accountant (even if one was not a public accountant as described in the legislation), or to personally use the term public accountant to describe what you do. The PEISCAD appeared to recognize that the legislation in question prohibited such claims as well, by banning “those who are not authorized by the Institute from carrying on business as, laying claim to the authority of, or representing themselves to be public accountants” (emphasis added). However, there was little engagement with the issue.
[62] That is because the respondents in Walker were seeking not just the right to call themselves public accountants, but the actual right to practice public accountancy as defined by the applicable legislation. The focus of their arguments on freedom of expression were not on referring to themselves as accountants, but by arguing that audits were themselves acts of expression.
[63] In Walker, the respondents submitted at trial that “authorizing and permitting only Chartered Accountants to practise public accountancy and auditing, thereby excluding the plaintiffs, who are fully qualified to practise in those areas, constitutes a denial of the plaintiffs' right to freedom of thought, belief, opinion and expression”: (1992), 101 Nfld.&P.E.I.R. 303 (P.E.I.S.C.(T.D.)) at para 4. As the trial judge explained, “the question on the first step of this analysis is whether the prohibited activity of auditing has expressive content, and I find and answer that question in the affirmative. In my view the purpose and essence of the audit report is to convey meaning” (emphasis added): at para 51.
[64] On appeal, the PEISCAD’s analysis focused on: (1) whether the Charter created a right to issue audit statements; and, (2) whether there is a right to be legally recognized as a public auditor. Notably, the PESCAD found the legislation did not restrict the action of issuing audit statements, so no s. 2(b) infringement was possible. In other words, it agreed with the trial judge that the act of “auditing” was expression protected under the Charter, but since the legislation did not constrain that act, s. 2(b) was not infringed.
[65] While the PEISCAD also concluded the legislation did restrict the portraying of oneself as a public accountant, it did not separately consider whether that restriction violated s. 2(b). This is an important distinction from the facts in this case where the College agrees Ms. MaryMoon’s violation of the legislation is only using a restricted title and not engaging in a regulated profession.
[66] There is a second way in which Walker can be distinguished. The case was framed by the respondents’ assertion not only of a right to call themselves public accountants, but of the right to do so in order to convey they were qualified under the regulatory scheme. They did not separate their asserted qualification (a question of credentials) from the title they wanted to use (an issue of expression). Given that is how they framed their case, that is how the PEISCAD claim was analyzed. In that light, the PEISCAD held there was no restriction on expression because the legislation only prevented someone from “laying claim to the authority of, or representing themselves to be public accountants.” The legislation did not prevent the respondents from engaging in accounting tasks (such as auditing) which was the action the appellants asserted was protected expression.
[67] Therefore, properly viewed, the Supreme Court of Canada endorsed the PEISCAD’s analysis that the legislation did not prevent the respondents from performing accounting tasks. The lack of an infringement was not because there was no expression; it was because there was no restriction on the expression as asserted by the respondents.
[68] The analysis in Baig is more complicated. At one point, the decision appears to turn on the Court of Appeal’s view that calling oneself by a particular profession did not meet any of the underlying goals of freedom of expression, as set out in Irwin Toy:
I do not think it can be said that allowing the appellant to call himself ["Dr"] or "psychologist" or any term representing himself to be such in the context of an advertisement for treating human ailments fulfils any of these goals. The problem facing the appellant here in demonstrating his "activity" promotes at least one of the goals set out above is the public will be misled into believing the appellant is properly qualified as such. Even if it could be said the appellant has a right to call himself a "Dr" as he holds a Ph.D., in the context of the advertisements in which the letters "Ph.D." do not occur, the "Dr" will in my view be likely taken to connote a medical doctor duly qualified as such in British Columbia.
Again, even if it could be said that the effect of this legislation restricts an activity that falls within s. 2(b) of the Charter, it is my opinion that the restriction, such as it is, does not undermine the principles and values upon which freedom of expression is based. See Keegstra at pp. 23-4.
[Emphasis added.]
[69] The jurisprudence from the Supreme Court of Canada both prior to and following Baig makes it clear that Mr. Baig was not required at the outset to demonstrate that his expression satisfied any of the goals underlying the protection of the freedom of expression in order to establish an infringement. That step is only required if the court concludes the purpose of the legislation is not to restrict protected expression. Instead, the jurisprudence has reflected what the Court explained in Keegstra at 732 that “the starting proposition in Irwin Toy is that all activities conveying or attempting to convey meaning are considered expression for the purposes of s. 2(b); the content of expression is irrelevant in determining the scope of this Charter provision.”
[70] The Court of Appeal concluded the purpose of the legislation was not to restrict expression because the prohibition was on Mr. Baig’s engaging in the unauthorized practice of psychology. This analysis puts Baig on all fours with Walker:
In my opinion, the purpose of the Acts and the sections in question is not to prohibit the appellant from publishing the views he holds but rather to prohibit him from holding himself out as, and practising in the fields of, psychology and medicine. The appellant is free to publish information about psychotransformational therapy, but in doing this he is prevented from calling himself or holding himself out as a medical doctor or a psychologist where, in the case of a psychologist, he renders services for a fee or a reward as is the case here.
[Emphasis added.]
[71] However, it could be said the next paragraph muddies the waters:
I do not think it can be said in this case there is a right to call oneself a doctor or psychologist which is a protected right under the rubric of freedom of expression. This is not, in my opinion, an activity that is performed to convey a meaning as that phrase is used in Irwin Toy. What is being conveyed is the title which connotes certain qualifications. In my view, a title does not have expressive content in that it does no more than describe the person holding it.
[72] In my view, the preceding quote appears to have an inconsistency. It is difficult to understand how an action that does not convey meaning, but at the same time “conveys” a title which both “connotes certain qualifications” and “describes the person holding it”. It is unclear to me how to differentiate acts that “convey” something from those that “connote” or “describe” something. In any event, that passage is obiter.
[73] Instead, I find the Court of Appeal analyzed Mr. Baig’s desire to call himself a doctor and psychologist to be inextricable intermingled with his assertion that he could also perform services that were reserved for registrants of the College of Physicians and Surgeons and/or the College of Psychologists:
Even if it could be said that a prohibition against calling oneself a “Dr.” or “psychologist” may in a broad view be an infringement of freedom of expression, I do not think that in this case the appellant can assert a violation of s. 2(b) of the Charter. I say this because in my opinion the appellant calling himself “Dr.” or “psychologist” or any name that would represent himself as a psychologist, in conjunction with an advertisement as to treatment of depression, emotional conflict and getting off medication, as is the case here, is misrepresenting himself to the public at large, that representation being that he is qualified in British Columbia as a medical doctor or as a psychologist.
[Emphasis added]
[74] In my view, the Court of Appeal in Baig did not identify any juridical significance between the unauthorized use of restricted professional titles, and the unauthorized practice of psychology and medicine.
[75] In the case at bar, however, the focus of all parties is not on what Ms. MaryMoon does for a living, but on how she describes what she does for a living. In my view, that is a distinct legal issue from the one examined in Baig and for that reason, the case is distinguishable.
[76] To summarize, the Supreme Court of Canada has been very clear that short of physical violence, or threats of violence, any activity that conveys meaning is prima facie protected expression. That approach means that, at the very least, any time words are written or spoken, they are prima facie protected expression. 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.
[77] Accordingly, I conclude that the legislation’s prohibition of her use of the term “death midwife” does violate section 2(b) of the Charter.
[78] Section 7 protects everyone from violations of their life, liberty or security of the person except in accordance with the principles of fundamental justice. The burden is on the claimant to demonstrate a breach of s. 7. To succeed, the respondent must establish both that the legislation operates to limit her liberty interest, and that it does so in a manner contrary to principles of fundamental justice.
[79] The respondent asserts that s. 51(1) of the HPA gives rise to a possibility of imprisonment and, as a result, a threat to her liberty. The College and the Attorney General correctly point out this proceeding is an application for a civil, statutory injunction and as such, there is no possibility of imprisonment. While the HPA contains an offence provision, the College has no ability to prosecute contraventions of the legislation. That is done pursuant to the Offence Act, R.S.B.C. 1996, c. 338, which has no application to this case. Accordingly, the respondent is not at risk of imprisonment.
[80] The respondent also asserts that s. 7 protects her ability to make fundamental life choices, relying on Victoria (City) v. Adams, 2009 BCCA 563. However, she did not identify which personal choice is being denied by the legislation. Since the legislation does not restrict in any way the services she provides, I am left to infer that the impugned restraint is on her ability to describe her work by using the word “midwife” in any capacity. That is identical to her claim under freedom of expression, which I find to be the proper characterization of her claim. She has not raised, either in evidence or legal submission, any way in which the legislation operates in some other way to impact fundamental life choices.
[81] In any event, the scope of what constitutes fundamental life choices protected by s. 7 is narrow. What engaged the liberty interest in Adams was the operation of a city by-law that prevented homeless people from taking “simple measures to protect themselves through the creation or utilization of rudimentary forms of overhead protection, in circumstances where there is no practicable shelter alternative” (at para. 109). The trial judge found as a fact that they had nowhere else to sleep (at para. 104). The combination of the non-availability of shelters and the inability to create shelter in City parks interfered with homeless people’s dignity and independence. That prohibition is very different in both severity and manner from the restraint on the respondent from describing her work as a “death midwife”.
[82] I conclude that the respondent has not demonstrated any engagement with the liberty interest so her claim under s. 7 fails.
[83] The respondent’s position is that “death midwife” unambiguously relates to the services she provides, which clearly have nothing to do with assisting or supporting pregnant women, or delivering babies. She asserts “death midwifery” is “a practice, a knowledge, an approach, a philosophy” that has deep roots in our civilization relating to end of life care. She takes the position that this is not the provision of health care, negating any possibility of confusion with regulated midwives. As a result, she submits that preventing her from using the term is not a justified interference with freedom of expression.
[84] The College and the Attorney General submit the s. 1 test is met by the legislation in this case. They submit the restraint on expression is measured and appropriately tailored to address the public health issues regarding both the regulation of health professionals and avoiding confusion about who is regulated.
[85] The issues in this case concern health professions and their regulation, which are both matters of provincial jurisdiction. The Attorney General adduced an affidavit from Mark MacKinnon, who is the Executive Director, Professional Regulation and Oversight for the British Columbia Ministry of Health. In his affidavit he describes the regulation of health professionals and the origins of the present legislative scheme. Attached to his affidavit are extracts from a number of relevant documents, including the Royal Commission appointed to review the health care system which issued a report in 1991: “Closer to Home: The Report of the British Columbia Royal Commission on Health Care and Costs” (the “Report” or the “Seaton Commission”).
[86] The College relies on two affidavits filed by Louise Aerts, Registrar for the College. The Intervenor adduced an affidavit from Etienne Van Eck who is the Director of Investigations for that college.
[87] In 1990, the Legislature enacted the HPA as an umbrella statute to replace a number of individual statutes aimed at specific professions. Hansard records the Minister of Health’s comments that the intent was to promote public safety by creating a common regulatory framework for all health professions. The Minister also commented that the legislation would require practitioners to meet minimum standards in order to be registered and registrants would be subject to ongoing standards of ethics and competence backed by a regime of discipline (British Columbia, Official Report of the Debates of the Legislative Assembly (Hansard), 34th Parl, 4th Sess, (17 July 1990) at 11089 (Hon J Jansen)).
[88] What was in place before the HPA were 16 separate statutes addressing professional regulation of various health professions. The Report identified a problem that there was a lack of consistency among regulatory schemes despite the common goal of protecting the public. Specifically, the Report noted variations amongst the regulating bodies in the terminology used, the exclusive grants of practices, the protection of occupational titles and the management of complaints, disciplines, appeals and offences. That system led to jurisdictional or territorial disputes amongst professional bodies which tended to create disputes unrelated to protecting the public.
[89] The first step in revising the system was the establishment under the HPA of the Health Professions Council (the “Council”). It was a three-person advisory body appointed by the Government of British Columbia to make recommendations about the regulation of health professions to the Minister. It served two functions: reviewing applications for health care practitioner groups seeking designation as a self-regulated profession, and considering any matter involving a health profession referred to the Council by the Minister. It was wound up at the end of 2002.
[90] The Seaton Commission was appointed around the same time. The Seaton Commission addressed a wide range of topics, but relevant to this litigation, it made recommendations about the method of regulating health professionals.
[91] The Report specifically mentioned that the legislation then in place did not address the question of “protecting the public from unqualified people who may cause harm to others, except where that harmful act or omission falls within an exclusive scope” because at the time there was no general provision that prevented unlicensed people from providing health services that could cause harm.
[92] Another pitfall was the jurisdictional skirmishes that arose amongst professions around legislative scopes of practice. As described, the issue was that some professionals had legislatively granted fields of practice, which excluded other professionals from providing services in the same field, even if there was no demonstrated risk to public health if both professionals provided those services.
[93] The Seaton Commission noted that a number of professions had requested exclusive titles through new legislation, or applied for title protection under the Society Act. At that time there was an informal agreement with the registrar under the Society Act that an exclusive title would not be granted unless it had been approved by the Ministry of Health.
[94] The problem at that time was there was no restriction on someone using a title which included the words registered, licensed or certified even if they had not been granted that status under the Society Act or the HPA. The Report recommended that use of words such as registered, licensed or certified be prohibited unless specifically approved by the Council.
[95] A number of professions did seek to regulate the use of the term registered in addition to the occupational title. The Council noted, however, that its preference was not to do so and instead reserve terms describing the profession for exclusive use of members of the college. That was followed by disallowing the registrar under the Society Act the ability to approve an occupational title or abbreviation. Instead the Council would have that power.
[96] The Season Commission opined that “exclusive scopes of practice should be narrowed to focus on preventing harm” rather than protecting professionals’ practices from encroachment by other professionals. Further, the Seaton Commission commented that, “[i]t may not be in the public interest to grant an exclusive scope of practice to every health profession”, but that it may “be appropriate to grant an exclusive title so that the public will know that the professional with whom they are dealing is regulated by a college.” The Report also recommended the legislation create an offence for “any person to treat, offer to treat, or advise in respect of any human health conditions in circumstances in which the treatment, offer of treatment or advice is likely to result in harm to another person” unless they were a licensed health professional.
[97] The Province responded to the Report, in part, in February 1993, with a proposed plan to modernize the healthcare system. This was addressed in a government issued pamphlet titled: New Directions for a Healthy British Columbia. To implement changes identified in New Directions and consistent with the Seaton Commission, Legislature amended the HPA. It also conferred on the Council a new mandate to review the scope of practice and legislation for established professions.
[98] Thus, the HPA was amended in 1993 to implement the new regulatory model.
[99] The Seaton Commission specifically addressed the regulation of midwives, and discussed the benefits of midwifery, both to health outcomes and the cost of providing care. This was significant because midwives were unregulated at the time.
[100] There is a tragic history underlying the regulation of midwives. Concerns about unregulated midwives gained prominence in the 1980’s because of a series of infant deaths during home births involving midwives. The following was included in the Judgement of Inquiry by the BC Coroner regarding the death of Baby McLean, (11 January 1987) Burnaby No. 86-212-1624 (Cor. Ct. B.C.), which was classified as preventable:
The major contributing factor to the death of Baby McLean, and to other similar deaths in this province, is the state of confusion that exists with respect to the matter of home births and midwifery. Until these matters are dealt with, other babies will continue to die unnecessarily.
[101] The Seaton Commission specifically recommended that midwives be recognized as health professionals, and that the Province establish a college of midwives and that midwifery enjoy an appropriate scope of practice under an existing act. As noted earlier, these legislative steps were taken, starting in 1995.
[102] Despite the major overhaul in the method of regulating health professionals in 1993, one thing did not change at that time: restrictions on the use of reserved titles. The HPA as it was enacted in 1990, contained s. 12(2)(b) as it still exists today, which permits the Lieutenant Governor in Council to designate by regulation one or more titles to be used exclusively by registrants of a college. The restriction on the use of those titles was then stipulated in s. 13(4):
No person other than a registrant of a college shall use a name, title, description or abbreviation in any manner that expresses or implies that he or she is a registrant of the college.
[103] This remained unchanged until 2008 when it was repealed and ss. 12.1 and 12.2 were added.
[104] I disagree with the Attorney General’s statement that when it was added, s. 12.1 used “substantially identical language” to what previously existed. Whereas previously, a college would have to establish someone was using a reserved titled “in a manner that expresses or implies that he or she is a registrant of a college” (virtually identical to what is now s. 12.1(3)), there was no absolute prohibition on using reserved titles in describing one’s work. That is the prohibition at issue here.
[105] Indeed, the College’s written submissions emphasize it is not required to demonstrate any confusion to obtain an injunction. It concedes that a non-registrant “who takes steps to ensure she is not confused as a registrant of the College, to avoid contravening subsection (3), but uses a reserved title as part of another title that describes her work, may still contravene subsection (1).” It also admits that s. 12.1(1) is separate and distinct from prohibitions caught by s. 12.1(3). As it states, the HPA “does not exempt non-registrants from the restriction based on a lack of confusion” and speculated even someone calling themselves a “divorce midwife” would run afoul of s. 12.1(1)(b).
[106] I was not given any evidence or explanation as to why the Province chose in 2008 to broaden the prohibition on the use of reserved titles.
[107] The respondent disagrees with the characterization of the legislation and its underlying policy as put forward by the College and Attorney General. While not relevant to how the legislation is interpreted, her evidence and submissions on that point are relevant to s. 1.
[108] However, the College and Attorney General object to the admissibility of large portions of the respondent’s evidence, and that dispute must be resolved.
[109] The College and the Attorney General submit the two affidavits of Mia Shinbrot are inadmissible because they purport to offer opinions on legislative intent and history. Not only does she have no qualification to do so, that issue is one this Court must adjudicate. They also constitute argument rather than evidence. For those reasons, both affidavits are inadmissible.
[110] With regard to the respondent’s affidavit filed May 9, 2018 (the “May 9 Affidavit”), the Attorney General contends that there is “little evidence” about the respondent’s own situation and much of the content is hearsay and opinion. He also submits that most of the exhibits attached to the May 9 Affidavit are inadmissible because they are hearsay.
[111] In the May 9 Affidavit, the respondent described her personal history, and outlined her education, experience and knowledge of caring for dying people. She also conveys information derived from her role as a founder and executive director of CINDEA. The May 9 Affidavit contains approximately 23 paragraphs where the respondent describes her knowledge about what she described as the “historically dual role” of midwives, the history of death care and the revival of death midwifery gained through her “experience and historical research” (paras. 48 to 69).
[112] The Attorney General objects to the admissibility of most of those paragraphs, and the exhibits attached to them. While the Attorney General acknowledges the greater latitude given to social and historical evidence in Charter proceedings, it asserts such evidence must be tendered in an admissible form, citing Cambie Surgeries Corporation v. British Columbia (Attorney General), 2017 BCSC 860 at para. 23.
[113] It is not clear to me that is what the court meant at para. 23 (cited below, which reproduces para. 41 from a previous decision in the case (2016 BCSC 1390)):
Overall, I conclude that a full and inclusive record is appropriate in constitutional litigation such as this with some latitude given to the admissibility of legislative facts, particularly with respect to hearsay. At the same time, this is not a constitutional reference or a royal commission and the record must be manageable as determined by the traditional techniques available to courts. These include limitations on opinion evidence, focus on relevance and the application of the restrictions, exceptions and principles applicable to hearsay (in particular for adjudicative facts).
[114] The issue of a manageable record in that case (which at that point had already comprised 80 days of trial and the plaintiff had not yet closed its case) does not arise in this case.
[115] In any event, as I understand it, the Attorney General’s objection is not that the evidentiary record is unwieldly, but that the exhibits attached to the respondent’s affidavit are not in an admissible form. However, that submission overlooks the principle that latitude is given to admitting legislative facts even if they are hearsay: Danson v. Ontario (Attorney General), [1990] 2 S.C.R. 1086:
It is necessary to draw a distinction at the outset between two categories of facts in constitutional litigation: "adjudicative facts" and "legislative facts". These terms derive from Davis, Administrative Law Treatise (1958), vol. 2, para. 15.03, p. 353. (See also Morgan, "Proof of Facts in Charter Litigation", in Sharpe, ed., Charter Litigation (1987).) Adjudicative facts are those that concern the immediate parties: in Davis's words, "who did what, where, when, how and with what motive or intent ...." Such facts are specific, and must be proved by admissible evidence. Legislative facts are those that establish the purpose and background of legislation, including its social, economic and cultural context. Such facts are of a more general nature, and are subject to less stringent admissibility requirements: see e.g., Re Anti-Inflation Act, [1976] 2 S.C.R. 373, per Laskin C.J., at p. 391; Re Residential Tenancies Act, 1979, [1981] 1 S.C.R. 714, per Dickson J. (as he then was), at p. 723; and Reference re Upper Churchill Water Rights Reversion Act, [1984] 1 S.C.R. 297, per McIntyre J., at p. 318.
[Emphasis added]
[116] The respondent refers to articles, dictionary definitions and other material which discuss end of life care, some of which use the word midwife. The point of that evidence is to demonstrate that the word midwife is not restricted to the care of pregnant women before and during childbirth. That point is relevant because the presumed association between midwife and pregnant women and delivery is an underlying tenet of the College’s submissions. There is no other way for the respondent to challenge that aspect of the legislation without such examples. She is not relying on the articles for their “truth”, but for the fact that the word is used in other contexts. As such, the evidence is not, strictly speaking, hearsay. Even if they are hearsay, they are admissible for s. 1 analysis.
[117] Accordingly, I find the May 9 Affidavit admissible.
[118] The College and the Attorney General also assert the respondent’s affidavit filed November 8, 2018 (the “November 8 Affidavit”), is entirely inadmissible as containing hearsay, opinion and argument.
[119] I agree that almost all of the content of the November 8 Affidavit comprises argument. It is therefore inadmissible as evidence, but I find it just and fair to treat the content as submissions.
[120] The College submits I should ignore the November 8 Affidavit in its entirety and not allow the respondent to rely on the content as submissions: Kaur Estate v. Bhandar, 6 R.P.R. (3d) 173 at paras. 28-30, (sub nom. Kour Estate v. Bhandar) [1996] B.C.J. No. 2379 and Rockwell v. Rockwell, 1998 CanLII 5277 (B.C.S.C.) at para 6, [1998] B.C.J. No. 1389. Neither case is helpful because no Charter issues were involved.
[121] The respondent deposed that she is a senior citizen of modest means whose monthly income comes from a pension and is $1,737.62 per month. Her counsel referred in court to those financial constraints and the difficulty the respondent had to marshal resources to defend against the petition, with both the Attorney General and Intervenor supporting the College’s position.
[122] In my view, it would be unjust to deny her the ability, through the content of the November 8 Affidavit, to put her case to the court in her own words. This is especially so when she is not launching a case, but defending herself against a public body seeking an injunction. Moreover, I can discern no prejudice to the College or Attorney General by allowing the affidavit to stand as submissions. While I do find the November 8 Affidavit inadmissible as evidence, I accept its content as submissions in my deliberations. In any event, there is little in it that differs from the legal submissions made by her counsel.
[123] The respondent submits “death midwifery” is a practice, knowledge, approach and philosophy that has deep roots in our civilization. Her position is that the description of her vocation – “death midwife” – unambiguously relates to the services she provides and no one could mistake her for a registrant of the College.
[124] In addition to the respondent’s background discussed at paras. 5 to 7 of this judgment, in 2013 she trained with Jerrigrace Lyons of Final Passages who she describes as “one of the earliest death midwives in the USA, and whose first death-midwifery website … was launched in 1997.”
[125] As noted earlier, the respondent has been providing what she calls “deathcare services” for more than 40 years. She describes her work as follows:
My role as Death Midwife and the role of other death midwives is to support the dying person and their family to apply the philosophy or approach of deathcare so as to explore what is most meaningful for the dying (and/or family) and to then bring about a peaceful, respectful and compassionate death and post-death experience.
Each family’s case is more than variations on conventions or traditions, but the bringing forth in to a specific form, and assisting the development, of that which is unique to that family.
I also help others to bring about the peaceful, respectful and compassionate death of a loved one as well as helping a loved one to manage or deal with the death.
[126] From her involvement with CINDEA, she deposed she has responded to hundreds of requests for further information “about all of the facets of pan-death care, including advising Canadians on available training to do this work; and as well as networking with other death midwives and related practitioners around the world.”
[127] The respondent emphasized her respect for the birth-related services regulated by the legislation and the importance to the public good of ensuring people are properly qualified to assist with birth. While she asserts that death midwifery is rooted in the same tradition and cultural practice as birth midwives, she submits she is not providing health care. The commonality she relies on is that both are roles traditionally, if not exclusively, performed by women who were caregivers.
[128] She also refers to various publications which describe that women were traditionally caretakers of the dead long before the development of what some writers have called the funeral industry. In the article “The death midwife: Women were the original undertakers” (an online article attached to the May 9 Affidavit), Isha Aran discussed author Suzanne Kelly’s book “Greening Death: Reclaiming Burial Practices and Restoring Our Tie to the Earth”, and wrote that “some women have begun to reclaim their role as society’s “midwives to the death”.” The respondent also quotes from another online publication addressing “Midwife-Healers” in Canadian Mennonite communities of the past. Other sources she identifies and quotes from include: “The Oxford Illustrated Companion to Medicine”, Oxford University Press, 2001, p. 493; and “Midwifing the End of Life: Expanding the Scope of Modern Midwifery Practice to Reclaim Palliative Care”, by Cheri Van Hoover, CNM MS, and List Holt, RN MSN MS (Journal of Midwifery & Women’s Health, Volume 61, Issue 3, 2016).
[129] At para. 67 of the May 9 Affidavit, the respondent described what she called a modern revival of death midwifery starting in the 1980s:
Many of the modern death midwives began their care of the dying during the 1980s HIV/AIDs crisis – notably at a time when few people were willing to even touch those with HIV/AIDS, never mind be caregivers for them. We were retired nurses, chaplains/clergy, celebrants, life coaches, grief counsellors, hospice volunteers, social activist etc., who were inspired to build upon our skills in working with the dying and their families from a midwifery approach/perspective. Many of us were caring for the dying and the dead [from] our communities long before offering our support publicly via websites etc.
[130] Beyond the revival of a more holistic approach to death, the respondent submits the word “midwife” is part of our common lexicon and is “common property”. She submits that the term death midwife is becoming increasingly familiar. In support she lists articles which reference that term and are available online published by the following well-known agencies: The Nation, The New York Times, The Oregonian, Detroit Metro Times, San Francisco Chronicle and The Globe and Mail.
[131] In addition, she lists 25 organizations (other than CINDEA) whose websites use the term death midwife in some capacity: two in Canada (“Journeying Beyond” and “Beyond Yonder Death Midwifery”); 16 in the Unites State; five in the United Kingdom; and, two in Australia.
[132] She also cites five books that are about death and/or end of life, which use the term midwife in their title, including one that was published before the amendments to the impugned legislation: “Death’s Midwives: Stories” Ontario Review Press Translation Series) by Margareta Ekstrom, 1985. The other titles are: “Midwife for Souls: Spiritual Care for the Dying: A Pastoral Guide for Hospice Care Workers and All Who Live with the Terminally Ill”; “A Midwife through the Dying Process: Stories of Healing and Hard Choices at the End of Life”; The Spiritual Midwife: New Meaning to Life After Death; and “The Soul Midwives’ Handbook: The Holistic and Spiritual Care of the Dying”. She refers to a sixth book that does not have the term midwife in its title but does use the phrase in one of its passages: “SACRED DYING: Celebrating Rituals For Embracing The End of Life”.
[134] The s. 1 test is well known and not in dispute. It is commonly referred to as the Oakes test. The government defending the legislation has the burden to establish:
a) The legislative measure at issue, which causes the infringement, serves a purpose that is of pressing and substantial importance, and;
b) The infringement of the right is proportional to the objective sought to be achieved by the legislative measure in three ways:
i. the provision must be a rational or logical means of achieving the legislative objective;
ii. the legislation minimally impairs the right, and;
iii. the salutary effects of the legislation (the degree to which it achieves its purpose and the importance of that purpose) must outweigh its deleterious impact (the nature and severity of the infringement).
[135] The key to properly applying this test is carefully identifying the objective of the impugned legislation, the means by which government has chosen to achieve the objective and both the scope and nature of the infringement of the right.
[136] A fair characterization of the purpose of the impugned legislation is critical because it is balanced against the impact of the infringement of the right at every stage of the second step of the Oakes test. Stating the purpose of the impugned legislation too broadly will unfairly tip the analysis towards upholding the legislation. Similarly, framing the impugned provision too narrowly may operate in the opposite direction.
[137] It is rare for legislation not to meet this step. The Attorney General submits the legislative objective must be described at a sufficiently high level of generality, citing R. v. K.R.J., 2016 SCC 31 at paras. 63-64. Based on that proposition, the Attorney General submits the purpose of s. 12.1 of the HPA is the “protection of the public from harm, or the risk of harm, resulting from the provision of medical or health-care services by persons without adequate skill or training.”
[138] With respect, it is not clear to me that is what the Supreme Court of Canada meant in K.R.J. at para. 63:
The appellant argues that the objective of the retrospective operation of the 2012 amendments is to increase the punishment imposed on offenders who committed their offences prior to 2012 so as to more effectively further the purpose and principles of sentencing. In my view, this articulation of the law’s purpose is not sufficiently precise and is essentially a description of the means the legislature has chosen to achieve its purpose: see Carter, at para. 76; see also R. v. Moriarity, 2015 SCC 55, [2015] 3 S.C.R. 485, at para. 28.
[139] The point is to frame the objective more precisely than a mere description of the effect of the provision at issue. However, the Attorney General’s statement of the legislative objective describes the entire legislative scheme, which includes the HPA and associated statutes and regulations. It is too broad and if it is used, would water down the s. 1 analysis considerably.
[140] The College submits s. 12.1 addresses two objectives: preventing confusion as to the status of registrant, and preventing dilution of a “public title”. There was no evidence to support the second objective identified by the College. There was no evidence whatsoever to explain why the 2008 amendment significantly broadened the restrictions on the use of reserved titles.
[141] In my view, the accurate characterization of the objective of s. 12.1 for the first step of the Oakes test is to ask whether the prohibition and limitations on the use of reserved titles in pursuit of protecting the public from unregulated health professionals, is an objective that is both pressing and substantial.
[142] I agree that it is. Among other things, that conclusion is supported by the Seaton Commission and the Province’s explicit reliance on it in restructuring the regulation of health professions in 1993.
[143] As adapted to the issues in this case, the issue is whether prohibiting and limiting the use of regulated occupational titles (these are the means chosen to achieve the objective) is a rational way of achieving the broader legislative goal of protecting the public from unregulated health professionals.
[144] I find that it is. Not only does it make sense from a logical point of view, the Seaton Commission commented on the confusion that could occur if the public was not clear about who had authority to provide specified health services. Apart from regulating the scopes of practices and creating a uniform statute for various health professions, regulating who can use occupational titles is logically connected to controlling who provides health care services. This aspect of the test is easily met.
[145] This step asks whether the legislative provision at issue minimally impairs the right, while still achieving the legislative objective. The focus in this step is more on the nature and degree of the infringement than on the legislative objective. One way of looking at this issue is to ask “whether there are less harmful means of achieving the legislative goal”: Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37 at para. 53.
[146] The Attorney General submits so long as the law falls “within a range of reasonable alternatives” it is minimally impairing. In other words, legislation should not be struck down simply because the court could conceive of an alternative that might be better tailored to the objective: RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199 at para. 160. At the same time, the court has also stated that “[w]hile the government is entitled to deference in formulating its objective, that deference is not blind or absolute”: Alberta v. Hutterian Brethren of Wilson Colony, at para. 55.
[147] As tailored to the facts of this case, the issue before me 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.
[148] The Attorney General’s written submissions outlines four reasons why the legislation passes the minimal impairment step. First, it asserts when the HPA was enacted a number of reasonable alternatives were examined, and this Court ought not to second guess the Legislature’s choice. Secondly, the process that led to the reservation of “midwife” was the product of recommendations from the Council and the Seaton Commission. Those submissions do not apply to the 2008 amendments, which is provision at issue.
[149] Third, he submits the designation of an individual health profession only occurs after careful study and therefore, the “HPA is minimally impairing because it is responsive to the specific public interest issues that arise in respect of each specific health profession”, rather than a blanket prohibition on the use of reserved titles. I do not understand that submission because the challenge in this case is to s. 12.1(1) which is virtually a blanket prohibition.
[150] Lastly, “[e]ach time a health profession or professional title is recognized, the Minister of Health is required to consider the public interest anew.” Again, this does not address why the Legislature decided to broaden the prohibition for all reserved titles.
[151] The Seaton Commission discussed why there appeared to be difficulty prosecuting unauthorized health professionals under the former legislative scheme. Part of the reason was that professional bodies became embroiled in jurisdictional disputes about who could provide certain services, even if there was no risk to public health. These jurisdictional skirmishes generally arose from overly broad exclusive scopes of practice, sometimes involving basic care “commonly given in the home by family members.” The Report used the example of the exclusive scope of practice granted to podiatrists at the time. Despite a lack of podiatrists in parts of British Columbia at the time, the college actively sought to prevent other health care professionals from performing basic procedures under their scope of practice, resulting in an inability for some people to access simple foot care.
[152] The Attorney General’s submissions accurately reflect the legislative changes that were made in 1993 in response to those difficulties. However, those submissions do not address the issue at stake in this case.
[153] That is because the Legislature did not see fit when revamping the regulatory scheme in 1993 to broaden the prohibition on the use of reserved occupational titles. Section 13.4 was enacted in 1990 and was unchanged by the 1993 overhaul. There was no equivalent to s. 12.1(1) until 2008. Accordingly, one is left to assume the opposite of what the Attorney General submits. The legislature was confident that the restriction on reserved titles in place in 1990 did not require updating in order to achieve the broader goals of the regulatory reform that took place in 1993. Had there been a concern, the Legislature would have made amendments at that time.
[154] Section 12.1 must be read as a whole. Section 12.1(3) is the rough equivalent of the previous s. 13(4), but s. 12.1(1) is new. Therefore, s. 12.1(1) must have been enacted to protect the public from mischief not caught or contemplated by s. 12.1(3). However, there is no explanation, policy rationale or evidence before me to explain why the Legislature chose in 2008 to broaden the prohibitions on the use of reserved titles.
[155] The respondent submits this lack of explanation is fatal to the Attorney General’s case because there is also no evidence of public safety concerns relating to the type of death care services she provides. Her point is supported by the evidence. In an email dated August 24, 2016, she asked the College’s affiant Louise Aerts to “clarify how you envision the presence of Death Midwives, or use of that term, would create ‘potential safety concerns for the public’.” She received no reply from the College.
[156] She also deposed that she raised the issue of public safety with her US and UK colleagues and received no indication that they were aware of instances of confusion, noting the alternative death care movements in those jurisdictions are about a decade older than in Canada.
[157] Although not part of its s. 1 submissions, the College speculates that the mischief addressed by s. 12.1(1) is “brand dilution”. It argues that s. 12.1(1) “addresses behaviours which are, in aggregate, likely to decrease consumer certainty whereas s. 12.1(3) addresses behaviours which are specifically likely to mislead a health care consumer.” The College likens this problem as the potential dilution of a “public” title if it is used by a non-government regulated occupation.
[158] As authority for its position argument, the College refers to Microsoft Canada Co. v. Ordre des Ingénieurs du Québec, , 257 D.L.R. (4th) 689 (Q.C.C.S.) at para. 28, leave to appeal ref’d (4 October 2005), No. 500-10-003247-051 (Q.C.C.A.). However, Cohen J. was not addressing a Charter issue and was commenting on the strict application of the legislation and Professional Code, R.S.Q., c. C-26, s. 188.1, not its justification under a s.1 analysis. As a result, the case is unhelpful in this context.
[159] More problematic, that approach would appear to revive one of the problems of the regulation of health professionals before 1993, as identified in the Report. The Seaton Commission observed that often regulatory activity commenced directly by the colleges focused on jurisdictional skirmishes amongst health professions regarding exclusive scopes of practice, rather than focussing on either public confusion or risk to public health (see above paras. 88, 92, 149 and 151).
[160] In my view, the notion of “brand protection” is more consistent with the former legislative scheme’s emphasis on strictly defined scopes of practice. Since the Attorney General insists the Seaton Commission remains the policy document that underlies the regulatory scheme, it is difficult to accept “brand dilution” could be the explanation for the 2008 amendments. At the very least, one would expect there to be some indication that the Province decided to backtrack somewhat from the impetus for the 1993 reforms. No such indication was put into evidence, nor offered by way of explanation by the Attorney General’s affiant.
[161] The Attorney General correctly points out that some cases have noted that evidence is not necessarily required to meet the s. 1 test. However, that does not mean a lack of evidence cannot be significant, depending upon the case. In this case not only is there a lack of evidence, there is no explanation or description as to what prompted the legislative change that resulted in a broader restriction on freedom of expression than existed when the scheme was enacted in 1993. Simply put, the court has not been told why it was necessary to broaden the restrictions on the use of reserved titles in 2008.
[162] I find the Intervenor’s evidence underscores and compounds the lack of justification. In his affidavit, Mr. Van Eck stated at paras. 11 and 12:
…the College of Physicians has never before taken action against a person using a description such as “lawn doctor” or “tree surgeon”. In the circumstances in which such terms are used, it is clear that the person using them is offering landscaping – not medical – services. There is no realistic possibility that unsuspecting members of the public may infer that “lawn doctors” and “tree surgeons” are entitled to practice medicine.
When considering whether a non-registrant’s use of a title or description expresses or implies that he or she is a registrant of the College of Physicians, I consider not just what the title or description is, but how it is being used and – most importantly – what the person using it actually does. A “lawn doctor” who advertises that he will make your lawn greener and offers to attend your home to attend to your lawn is not likely to be mistaken for someone who is entitled to practice medicine.
[163] He goes on to state that he is unaware of a non-registrant using the terms such as “death doctor” or “death physician”, but stated if he became aware of such use he would be concerned about a “realistic possibility that an unsuspecting member of the public may infer that a ‘death doctor’ is entitled to practice medicine.” There is no similar concern expressed anywhere in the evidence about possible confusion as to whether death midwives are health professionals.
[164] I acknowledge that the Intervenor focussed its legal submissions on s.12.1(3) of the legislation. However, Mr. Van Eck’s evidence is enlightening. It is clear that pursuant to s. 12.1(1)(b), the Intervenor would be entitled to prosecute a self described “lawn doctor” or “tree surgeon”. The fact that it chooses not to because of the unlikelihood they would be perceived as health professionals is relevant to this analysis. Notably, that approach contrasts with the College’s indication that it would prosecute someone proclaiming themselves to be a “divorce midwife”.
[165] The College also submits the measure is minimally impairing because the respondent could use different words to describe her work that would not violate the legislation (such as “doula to the dying” for instance). There are two reasons why I do not find that argument compelling.
[166] First, the onus is on the Province to justify the infringement on freedom of expression. There is no onus on the respondent to indicate how she could avoid violating the legislation. Second, suggesting the respondent use a different term in order to bring herself in compliance with the legislation is still a restriction on her freedom of expression.
[167] The College and the Attorney General also contend that the legislation is minimally impairing because it only prevents the respondent from using the word midwife in describing her work, but does not restrict her work in any way. That analysis is flawed. The question is whether the legislative provision minimally impairs the right asserted: freedom of expression. The fact that the legislation does not prohibit other activities is irrelevant unless the respondent was asserting those activities were also expressive and protected by the Charter.
[168] For all those reasons, I am unable to conclude that s. 12.1(1) minimally impairs freedom of expression, so the s. 1 test has not been met. Therefore, I will not consider that final step of the Oakes test.
[169] Given my conclusion about the constitutionality of s. 12.1(1), the College’s petition is dismissed and no injunction will be issued.
[170] However, that is not the end of the matter. Having found that s. 12.1(1) is unconstitutional, the question arises as to what remedy is appropriate. The parties correctly identify that there are two possible sources for relief: s. 24(1) of the Charter and s. 52(1) of the Constitution Act, 1982.
[171] The guiding principles are not disputed. Section 24(1) is meant to provide a responsive and effective remedy for governmental action that infringes the Charter, and its application should be approached consistent with the rest of the Charter, in a generous fashion: Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62 at para. 25. More generally, the Supreme Court of Canada in Schachter v. Canada, [1992] 2 S.C.R. 679, commented that courts are not limited to striking down legislation found to be unconstitutional pursuant to s. 52(1) of the Constitution Act, 1982 and may order less drastic remedies such as reading down or severance. Moreover, even if a declaration of invalidity is granted, it can be tailored to strike down the law only to the extent that it is inconsistent with the Charter: Carter v. Canada (Attorney General), 2015 SCC 5.
[172] The Attorney General submits if a declaration of invalidity is issued, it ought to be limited in application to the intersection of s. 12.1(1) and the Midwives Regulation.
[173] However, that remedy would not fairly reflect the evidence before me, and the findings I have made as to the nature of the infringement in this case. As discussed earlier, no explanation was provided why the Legislature decided to broaden the restriction of the use of reserved titles for all health professions, even if there was no potential for the public being misled.
[174] The Intervenor has tempered the impact of s. 12.1(1) by choosing not to prosecute uses of doctor or surgeon that are clearly not in the health field. That evidence suggests s. 12.1(1) is unnecessary to achieve the objective of protecting public safety.
[175] Taking all the factors into account, I conclude that the appropriate remedy is to issue a declaration pursuant to s. 52(1) of the Constitution Act, 1982 that s. 12.1(1) is unconstitutional. Because s. 12.1(3) remains valid, and no evidence was presented about risks to public safety by uses of reserved titles that ran afoul of s. 12.1(1), I am satisfied this remedy strikes the appropriate balance.
[176] However, the Attorney General sought leave to make “additional submissions on the appropriate remedy, the scope of any declaration, and the necessity and desirability of a suspended declaration of invalidity” in the event I granted a declaration of invalidity under s. 52(1) of the Constitution Act, 1982.
[177] I see no basis to allow extra submissions. The Attorney General bore the evidentiary and legal burden under s. 1, and therefore presumably brought forth all relevant evidence. Allowing the Attorney General to address an issue that was squarely before the court amounts to splitting the case. It would not be fair nor appropriate to allow those submissions.
[178] In summary, I agree that Ms. MaryMoon’s use of the title “death midwife” violates s. 12.1(1) of the HPA. I find s. 12.1(1) infringes freedom of expression and that infringement is not saved by s. 1. Accordingly I grant a declaration pursuant to s. 52(1) of the Constitution Act, 1982 that s. 12.1(1) of the HPA is of no force or effect.
[179] Because she succeeded, Ms. MaryMoon is entitled to receive costs from the College and the Attorney General. The Intervenor did not seek costs and submitted no costs should be awarded against it. I agree with both propositions.
“Sharma J.”
[1] There are some titles that are reserved for more than one profession; for example, registrants of both the College of Dentistry and the College of Physicians and Surgeons may call themselves “surgeons”.
[2] The Medical Practitioners Act was repealed and the Psychologists Act was amended when amendments to the HPA setting up the current scheme of regulation was enacted, as discussed later in this judgment.