I N N O C E N C E
-by Mary Sullivan. For more about Justice
Curtis' decision, and background to what Gloria
is going through now, go
here.
I was Gloria Lemay's midwifery partner for many
years prior to regulation in January, 1998. At
that date, any woman who did not register with
the College of Midwives of BC, the regulatory
and disciplinary body, was banned from use of
the title "midwife". I and 14 other
women were failed by the College, and we later
found out that there had been cheating on the
exams. We are still trying to get an investigation
into the examination process. I spent a great
deal of money and time to complete and pass the
exams, and then faced one roadblock after another.
I eventually abandoned efforts to join the College
of Midwives. Gloria made the choice to decline
registration with the College.
I first met Gloria in 1983, and she and I have
faced the Court system together in the past. The
events of January, 2002 are better understood
if we review the history leading up to today.
I, like many of you, watch Law and Order on TV
and think I know how it works. Basically, if you
are a good and honest person, you MUST be innocent
and, if you're mean and dishonest, you'll be found
guilty. When you're actually on trial, you discover
that the reality is nothing like TV. The cost
of mounting a defense is enormous. Every affidavit
and piece of paper costs a great deal of money.
Political expediency and powerful groups do influence
and affect judges' decisions. The position of
being accused creates a suspicion which colours
the proceedings.
What the law is supposed to do is to hone language
in order to clearly communicate what is acceptable
or unacceptable behavior in society. If the interpretation
of the law is in dispute, it may take an appeal
to straighten out the disagreement and some court
decisions lead to changes in legislation.
Gloria and I went through a criminal court trial
which began in 1985 and ended in an acquittal
at the Supreme Court of Canada in l991. To this
date, this was the longest, costliest trial in
the history of the world involving midwives. Gloria
and I created a context for the trial when we
were first arrested. Our context was "This
will be the last time midwives face the criminal
justice system in Canada." No midwife has
been on trial in our country since.
Our Supreme Court of Canada acquittal in 1991
was the impetus for provincial governments to
begin regulating midwifery with professional associations,
because it was no longer practical to threaten
midwives with prosecution. When you see Gloria's
current case in the newspapers, you will read
that Gloria and I were acquitted because the Court's
found that the fetus was not a person. This sounds
like "the evil midwives got out of being
responsible for a baby's death by claiming it
wasn't a person". This is not true, and it
wouldn't have taken 6 years through the Courts
if it had been so simple. Before we ever got to
the Court system, there was legislation in place
that said the fetus is not a person UNDER THE
CRIMINAL CODE (my caps). There is no doubt that,
outside a court room, a fetus is a person. Women
who face the anguish of a miscarriage are grieving
a very "real" baby and many women who
struggle with choosing to abort know that a "real"
life will leave their body.
Many awful cases, including one where a baby
was killed by its father with a knife wound to
the mother's belly during pregnancy, had been
argued under that legislation. Why would such
a concept even be possible? Why was that law enacted
in the first place and why would it be kept if
it could make it possible for an unborn baby to
be killed and have the killer walk free? The reason
the law was written and the reason why it still
stands today is because it is a protection for
PHYSICIANS who attend births. If a physician puts
forceps on a baby's head and pulls, she/he needs
to know she/he will not be criminally liable if
the baby dies. What happened at a County Court
level to Gloria and I, is that the Judge decided
that we were not protected by that law.
We appealed her reasoning to the BC Court of
Appeal on the "fetus as a person under the
Criminal Code" section, and several other
grounds. The B.C. Court of Appeal did something
very bizarre and unexpected. They acquitted us
of causing death, but they substituted a new interpretation
of the law and said that we had caused harm to
the body of the mother because the baby was a
part of the mother's body. Now, bear in mind,
that this thinking had never been applied to a
physician. In Canada, the law is supposed to be
applied equally to all citizens- doctors, midwives,
fathers, etc. The other thing is that we did not
know the Appeal Court would be putting us on trial
for causing bodily harm to the mother and, therefore,
our lawyers never addressed that charge. This
Appeal Court finding left Gloria and I with a
lesser conviction and a punishment of one-year
probation. Most people would have quit at this
point.
This is the inequity of the Court system- the
cost in dollars and emotional health is so high
that it is almost impossible for individuals to
challenge this type of injustice. We were supported
by members of the legal profession, women's groups,
our clients and families. We received no support
from the Midwives Assoc. of B.C., and a few midwives
worked actively with the prosecution to convict
us. I mention this because Gloria's court case
today is a result of the fact that those old grudges
have never been settled and cleaned up.
Our lawyers went to the Supreme Court of Canada
and in 1991, long after all the sentences had
been served, our acquittal came. At one point
in the Supreme Court proceedings in Ottawa, the
chief justice asked our lawyer this question "Mr.
Berger, what would have happened to Canadian justice
if these women had not brought this appeal?"
What he recognized in that rhetorical question
is that the law had been so bent and twisted in
the B.C. Courts in order to ensnare us, that it
would have set unworkable precedents if left on
the books. It was a giant step in affording midwives
the same consideration as doctors.
Today we are looking at a new situation. The
way the Midwives Regulation is applied to birth
attendants, doulas, neighbor ladies, nurses, fathers,
etc., is at issue in the contempt of court proceedings
against Gloria. We have a disciplinary body for
midwives and they have the funds to launch legal
action against their own members and others. A
recent letter from the Minister of Health for
B.C., Colin Hansen indicates that, in addition
to the $5,000 per year the College receives from
each of its 60 Members, the Health Ministry also
sends $175,000 to them.
Having the funds and having the authority are
two very different things and that is the essence
of the current debate. Here is the logical sequence
of Gloria's defense.(caps are mine).
1. Only a registrant of the College of Midwives
may BE a midwife, or USE THE TITLE midwife.
2. The Midwives Regulation stipulates certain
designated restricted acts which can not be
done FOR THE PURPOSES OF MIDWIFERY by anyone
except a College registrant.
3. Gloria is not a registrant of the College
of Midwives. Therefore, under the Midwives Regulation
she is NOT a midwife. The fact that the Judge,
the College of Midwives, and the newspapers
have all declared her to be a midwife is a contravention,
on their parts, of the B.C. Midwives Regulation.
The judge has recognized that Gloria does not
call herself a midwife in his contempt finding.
Now, we must ask ourselves "Is this just
playing around with words?" The words on
paper are the very meat of the law. The legislators
and attorneys worked for years to find the right
phraseology to designate the province of Quebec
as a special cultural area in Canada, and came
up with what is now known as the "notwithstanding"
clause in the Charter of Rights and Freedoms.
This little clause could determine the future
of our country.
The little clause that the B.C. legislators added
in to the Midwives Regulation after a great deal
of input from all the stake holders and the public
is the "for the purposes of midwifery"
clause. The addition of this clause was to ensure
that citizens outside of the College of Midwives
would NOT be governed by the regulation. It was
pointed out to the government that a pregnant
woman's partner would be restricted in lovemaking
if "pelvic exams on a pregnant woman"
were forbidden for ordinary citizens.
Gloria accepted the injunction of Mr. Justice
Curtis because:
a) she knew she could discipline herself to
never describe herself as a midwife
b) she was prepared to prepare a document informing
her clients that she was not a midwife, not
a member of the College of Midwives, and not
doing anything for them "for the purposes
of midwifery". Gloria and other members
of the B.C. Traditional Birth Attendants Assoc.
have stated in a client information document
that they attend births "for the purposes
of facilitating a healthy, sacred experience
for (the) family and absolutely not for the
purposes of midwifery".
c) The Honourable Mr. Justice Curtis, in the
original injunction proceedings, specifically
stated that he had no problem with Gloria teaching
midwifery
d) The Honourable Mr. Justice Curtis, in the
original injunction proceedings, stated that
women would be going out to assist other women
in childbirth and they would be earning money
from that activity.
The findings of the judge in the contempt action
seem to be creating a whole new injunction based
on the thoughts, feelings and interpretations
of the new Judge and counsel for the College of
Midwives. This is not justice. Gloria cannot be
expected to know about an injunction that did
not exist and to which she did not agree. The
law must be followed as it is written.
I believe that under the law, Gloria is innocent
of the charges against her and that she will be
found innocent after appeal. It will take time,
patience and a great deal of money to sort out
this conviction for contempt of court. Just as
our 1991 acquittal opened up new freedoms for
midwives and parents, working out this matter
will free up midwives to leave regulated practise
if they choose and it will open up more choices
for parents.
We are working toward the absolute recognition
of a woman's right to choose where, when and with
whom she will give birth. The time to do this
is now. Once this is completed, we will look back
and wonder why we ever put up with impediments
to choice for so long.
-Mary Sullivan, Vancouver, BC
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