Appeal court orders Victoria woman to stop calling herself a ‘death midwife’

B.C.’s highest court has ordered a Victoria woman who has been helping dying people and their families for more than 40 years to stop referring to herself as a “death midwife.”

In doing so, a three-judge panel of the B.C. Court of Appeal overturned a lower court decision that dismissed an application by the College of Midwives of B.C. for an injunction against Pashta MaryMoon.

In 2016, the college, which regulates the province’s midwives, sent MaryMoon a letter asking her to stop using the term, which she said refers to her providing help to people who are dying, but she declined to do so.

She claimed she was clearly not misrepresenting herself as a birth midwife, but the college went to court seeking the injunction.

In October 2019, B.C. Supreme Court Justice Neena Sharma dismissed the college’s application and struck down as unconstitutional provisions of the Health Professions Act, the applicable law.

The judge did find that MaryMoon, who is not a member of the college, had violated the law by her use of the term “midwife” on the Dying With Dignity Canada website and on social media.

The section of the act in question prevents a person from using the term midwife in association with or as part of another title describing a person’s work.

But Sharma said it also was clear that the legislation itself was unconstitutional because it violated MaryMoon’s right to freedom of expression.

The college and several other parties appealed the ruling, arguing that the judge had failed to properly consider the case law and had erred in her analysis of the Charter arguments.

In his written reasons, B.C. Court of Appeal Justice Peter Willcock said the nature of the freedom of expression was “principally commercial,” meaning that its connection to underlying Charter values was “tenuous.”

While the deleterious effects of any Charter infringement were marginal, the salutary effects including ensuring that a vulnerable group (health care consumers) can easily identify regulated and qualified health care professionals, outweighed those deleterious impacts, said the judge.

Justice Susan Griffin and Justice Patrice Abrioux agreed with Willcock.

“Obviously, I’m disappointed, but I’m still trying to absorb it,” MaryMoon said of the ruling Wednesday. “There’s an awful lot of legal language I have to sort of wade through.”

MaryMoon added that she believed there was a lot of context that was left out of the appeal court’s decision.

“I think what’s bothering me about this is there’s a lack of recognition of the history of midwifery and a lack of understanding of what death midwifery is in a modern context.”

Asked whether she intended to obey the court order, MaryMoon said she plans to consult with her lawyer further and will consider an appeal.