Squillo McBoingBoing's List: Gloria Lemay

• At 2:00 p.m. the infant's head could be seen, but the mother's contractions had stopped. The appellants then applied a number of ineffectual procedures in an attempt to deliver the infant, one of the last of which was to attempt a surgical procedure (episiotomy). This was stopped after an incision of 2 to 3 cm had been made. After 20 minutes the appellants telephoned Emergency Health Services, who sent an ambulance and attendants. The attendants, upon the instructions of Lemay, applied great fundal pressure over Mrs. Voth's uterus. As was noted by the trial judge [55 C.R. (3d) 48 at 62, 31 C.C.C. (3d) 62], "It was astonishing that nothing was ruptured." Mrs. Voth was then transported to the hospital, where a doctor quickly delivered the infant. However, it was too late. The baby had been asphyxiated.
• The judge found the appellants guilty of count 1. She came to that conclusion on count 1 after deciding that the baby, in the circumstances, was a "person" as set out in s. 203 of the Criminal Code.

• she added [pp. 62-63 (C.R.)] that:

    

  … had I reached the opposite conclusion with respect to the "persons" argument above, then I would have found the accused guilty on this count [count 2], because I would have concluded that the child was a part of Jewel Voth at the time of its death.
• On the authority of the line of cases beginning with R. v. Senior, cited above, it would appear that s. 203 applies to pre-birth negligence injuring a foetus born alive. The fact of death intervening between the time of birth and the moment the injury was sustained does not change the quality of the wrongdoer's conduct.
• At common law the line of demarcation for a foetus to become a person was the requirement that it be completely extruded from its mother's body and be born alive.
•   In our opinion, however, it is not appropriate for the courts to extend the law in this area. If Parliament considers it appropriate to protect a child during the birth process from criminally negligent acts by those attending and assisting at the birth, that is a matter upon which Parliament can legislate.
• The action that causes me most concern in this regard is the application of fundal pressure under the instruction of Lemay by the two ambulance attendants, one of whom was a "power lifter" and said he was pushing as hard as he could. It is astonishing that nothing ruptured.
• I should comment that, had I reached the opposite conclusion with respect to the "persons" argument above, then I would have found the accused guilty on this count, because I would have concluded that the child was a part of Jewel Voth at the time of its death.
• The appellants make two answers to that submission. First, it is contended that baby Voth was not part of the mother, and therefore the acts which the trial judge found on count 2 to constitute bodily harm pertained to baby Voth rather than its mother.
• Appeal allowed; accused aquitted of criminal negligence causing death; conviction entered on charges of criminal negligence causing bodily harm.

8 more annotations...

• At issue, in R. v. Sullivan and Lemay, was whether a living child partially born is a person within the meaning of s. 203 of the Criminal Code, and if so, whether an appropriate standard for determining liability is an objective standard.  At issue in Sullivan and Lemay v. The Queen was whether s. 613(2) and (8) gave the Court of Appeal jurisdiction to substitute a conviction of criminal negligence causing bodily harm in the absence of a Crown appeal on that count and whether the Court of Appeal erred in holding the foetus to be a part of the mother, such that a conviction for criminal negligence causing bodily harm could obtain on the death of the foetus.

    

   

    

                    Held in Sullivan and Lemay v. The Queen (L'Heureux‑Dubé J. dissenting):  The appeal from the Court of Appeal's judgment substituting a conviction of criminal negligence causing bodily harm should be allowed.

    

   

    

                    Held in R. v. Sullivan and Lemay:  The appeal from the Court of Appeal's judgment acquitting Sullivan and Lemay of criminal negligence causing death should be dismissed.
• No compelling policy reasons were put forward for granting a further exception which would extend the Court of Appeal's jurisdiction to substitute a conviction for an acquittal in the absence of a Crown appeal.
•                   This case raises the issue of whether a foetus in the birth canal is a "person" for the purposes of s. 203.  It also raises a procedural question regarding the jurisdiction of a court of appeal under s. 613 (now s. 686) of the Code.   The case initially raised other important issues regarding the legal status of a foetus and the mens rea required for criminal negligence but, due to the lack of appeal by the Crown, these issues need not all be addressed because of the procedural determination.

• Sullivan and Lemay were hired by Jewel Voth to provide private pre-natal classes and to act as midwives during a home birth.  Although Sullivan and Lemay had some experience with home births and had done background reading, they had no formal medical qualifications.

    

   

    

                    After five hours of second stage labour, the child's head emerged and no further contractions occurred.  Sullivan and Lemay attempted to stimulate further contractions but were unsuccessful.  Direct pressure was applied to the uterus, causing soreness to the mother's stomach and back and some bruising.  Approximately twenty minutes later, Emergency Services were called and the mother was transported to the hospital.  Within two minutes of arrival, an intern delivered the baby using what the trial judge characterized as "a basic delivery technique".  The child showed no signs of life and resuscitation attempts were unsuccessful.

• Sullivan and Lemay were jointly charged with one count of criminal negligence causing death to the child of Jewel Voth contrary to s. 203 of the Criminal Code, and a second count of criminal negligence causing bodily harm to Jewel Voth contrary to s. 204.  They were tried in the County Court of Vancouver and were found guilty on the first charge and were acquitted on the second charge.

    

   

    

                    Sullivan and Lemay appealed the criminal negligence causing death conviction on count 1 to the British Columbia Court of Appeal.  The Crown did not appeal the acquittal of Sullivan and Lemay on count 2.  The Court of Appeal allowed the appeal from the conviction on the first count, but substituted a conviction on the count of criminal negligence causing bodily harm (notwithstanding the absence of a crown appeal).  Sullivan and Lemay have appealed the substituted conviction on the second count to this Court, and the Crown has appealed the decision of the Court of Appeal to overturn the initial conviction on the first count.

• In assessing whether Sullivan and Lemay failed to have and to use such reasonable skill and knowledge, Godfrey L.J.S.C. noted, at p. 68, that she was satisfied beyond a reasonable doubt that:

    

   

    

  First, had this child and mother been transported to hospital even as late as one o'clock, the child would have lived; secondly, had the accused possessed the skills of the intern at St. Paul's Hospital, the child would have lived.

    

   

    

  Godfrey L.J.S.C. held that Sullivan's and Lemay's lack of knowledge, skill and care was in breach of the legal duty imposed by s. 198 and that this lack of knowledge and skill had caused the death of the child of Jewel Voth.  The Judge then turned to the issue of whether Sullivan and Lemay had shown wanton or reckless disregard for the lives or safety of other persons within the meaning of s. 202 (now s. 219).  She concluded that the mens rea of criminal negligence is determined by an objective standard and thus that "good intentions" on the part of the midwives were irrelevant.  Consequently, Godfrey L.J.S.C. held that the actions and omissions of the appellants, in all the circumstances, showed a reckless disregard for the life and safety of the child.

    

   

    

                    Before finding the appellants guilty of criminal negligence causing death to the child, the Judge briefly considered whether the foetus is a person for the purposes of s. 203.  She considered and adopted the reasoning of the County Court of Vancouver Island in R. v. Marsh (1979), 31 C.R. (3d) 363, to the effect that a full-term child in the process of being born is a person within the meaning of s. 203, notwithstanding that it would not be a human being for the purpose of s. 206 (now s. 223).

    

   

    

                    With respect to the second count, Godfrey L.J.S.C. held that the bruising, etc., did not amount to bodily harm and therefore found the accused not guilty of criminal negligence causing bodily harm to the child of Jewel Voth.  She also commented that had the baby been "part" of the mother, she would have found the appellants guilty on that count.

    

   

• Accordingly, the child was not a person within the meaning of s. 203 and Sullivan and Lemay could not be found guilty of criminal negligence causing death (to another person).  The court noted, at p. 160, that

    

   

    

  If Parliament considers it appropriate to protect a child during the birth process from criminally negligent acts by those attending and assisting at the birth, that is a matter upon which Parliament can legislate.

    

   

    

                    Having reached this conclusion on the first count, the court did not find it necessary to consider the other grounds of appeal; thus the Court did not consider whether the trial judge was in error in finding mens rea based solely on an objective standard.

    

   

    

                    The Court of Appeal then considered the second count of criminal negligence causing bodily harm to Jewel Voth.  It noted that the trial judge had indicated that she would have found the accused guilty on the second count in the event that she had reached the conclusion that the foetus was not a person, because she would then have found that the foetus was a part of its mother at the time of its death.   The court indicated that its holding on the line of demarcation between a foetus and a person led it to the conclusion that a child in the birth canal is, as a matter of law, part of the mother.  Thus, Sullivan and Lemay could be convicted of criminal negligence causing bodily harm to Jewel Voth via the harm done to the foetus.  The court appeared to accept the Crown's submission that it had jurisdiction to allow the appeal pursuant to s. 613(2) (now 686(2)) and to thereby enter an acquittal on count 1, and also to enter a conviction on count 2 pursuant to s. 613(8) (now 686(8)).  Referring to the reasons of Dickson C.J. in Terlecki v. The Queen, [1985] 2 S.C.R. 483, the court indicated that the normal procedure would be to remit the matter to the trial judge to consider whether to register a conviction on the second count.  However, Godfrey L.J.S.C. had expressed her opinion on this point and it was therefore unnecessary to do so.  Therefore, the court entered a conviction on the second count.

    

   
•                   Sullivan and Lemay have argued that the Crown's appeal on this issue should be dismissed, both on the grounds that it has been abandoned and that it cannot be supported on the merits.  It is true that the Crown has not directly supported the contention that a foetus is a person within the meaning of s. 203.  The Crown has appealed on this ground because it takes the position that a foetus must either be a part of its mother or a person; there can be no intermediate state
•   Sullivan and Lemay contend that the Crown is only bringing this appeal as a convenience to the intervener, R.E.A.L. Women, which has argued that the foetus is a person within s. 203.  They argue that the Crown has no right to bring an appeal on an issue which it does not, itself, support.  In my view, it is unfair to say that the Crown's appeal has been brought solely for the convenience of the intervener, R.E.A.L. Women.  The Crown has brought the appeal because it takes the position that if the foetus is not a part of the mother, then it is a person.  The Crown assumes that if this Court finds, in the main appeal, that the Court of Appeal erred in finding that a foetus in the birth canal is a part of the mother, the natural corollary will be that the foetus is a person.  Whether or not this assumption is valid, the Crown's appeal on count 1 is consistent with its approach to the issues and it is clear that the Crown has not brought this appeal to aid the intervener R.E.A.L. Women.
• In my opinion, the Kienapple rule has no application to this case.  First, there is an insufficient legal nexus between the two offences; one requires proof of the death of the foetus while the other requires proof of bodily harm to the mother.  While the two charges may involve the same general conduct, they involve two separate consequences.  Second, the acquittal entered by the trial judge on count 2 was an acquittal on the merits and was not entered pursuant to a finding of guilt on the first count. 
• eureux-Dubé J. (dissenting in Sullivan and Lemay v. The Queen)

• I should comment that had I reached the opposite conclusion with respect to the "persons" argument above, then I would have found the accused guilty on this count because I would have concluded that the child was a part of Jewel Voth at the time of its death.

    

   

    

                    In these circumstances, I agree with the Court of Appeal's disposition and therefore I would dismiss the appellants' appeal from their convictions on the second count.

    

   

    

                    In the result I would dismiss both appeals.

10 more annotations...

• The inquest is one into the death of the infant Eli Foidl‑Gosnell, who died August 22, 1994, three days after being born at home, with Ms. Lemay evidently in attendance as a midwife.  The inquest was first called for the 6th of February, 1994, at which time Ms. Lemay was subpoenaed to attend at the jury's request.  At that time, her counsel Mr. Chouinard attended with her and made various preliminary objections, and the inquest was adjourned to a date convenient to him.
• As well, the Coroner's office had by this time provided Ms. Lemay with various pieces of information intended to be called, including a list of witnesses and the pathology report from Children's Hospital attributing the death to E. coli septicemia.
• A subpoena was served on her on May 24th to attend on the 25th at 9:30 a.m.  No witness fee was provided.  Ms. Lemay did not attend at 9:30 a.m.  Her lawyer's articling student, Mr. Williams, did attend.  Ms. Lemay's affidavit states that he informed the Coroner's office ‑‑ I don't know to whom he spoke there ‑‑ that "I would voluntarily attend the inquest if I was paged 40 minutes before I was required to give evidence."  What Ms. Lemay's affidavit and Mr. Williams' affidavit does not mention ‑‑ but Mr. Hinkson has advised this Court ‑‑ is that at 8:50 a.m., Mr. Williams told Mr. Hinkson, counsel to the Coroner, that Ms. Lemay was prepared to attend and testify only on two conditions: first, that she would be the last witness called; and second, that she would answer only questions of the jury and not those of the Coroner or his counsel.  The issue of witness fees was not raised at this or any other time.

• Mr. Williams replied that she would not attend on that basis and further declined to cooperate in the execution of a warrant which Mr. Hinkson stated was likely to be issued.

    

       The warrant was duly issued for Ms. Lemay to be brought before Dr. Pilley at 1:30 or so soon thereafter as reasonably possible.  Ms. Lemay did attend at 3 p.m. with Mr. Chouinard.
• I take it that she was sworn, was asked her age and gave it, and then refused to answer any further questions of Mr. Hinkson.  She attempted to hand some material to the jury, was ordered to return to the witness box, refused to do so, left the material on the jury box rail and, ignoring the Coroner's direction to return to the witness stand, she left the hearing.  It was then adjourned and remains unfinished pending receipt of Ms. Lemay's evidence.  As I say, there is no evidence from Mr. Williams or Ms. Lemay that calls this version of the events of May 25 into question.
• The first was that "twelve hours' notice was insufficient."  Not surprisingly, he did not pursue this argument since in fact an adjournment of some months had been granted at his request and Ms. Lemay was aware of the scheduled date for the inquest long before May 23. 
• Mr. Chouinard suggested at one point that his client was willing to overlook the matter of the witness fee.  However, I do take it that he is raising that as a technical defence on the first contempt charge, i.e. failing to obey a subpoena.
• It is that Ms. Lemay had a bona fide fear that the Coroner's inquest was not going to be a search for truth as to "who had died, how, when, where, and by what means", to quote section 28 of the Act, but was going to "lay blame" and was indeed likely to be unfair or partial in its dealings with Ms. Lemay. (I note parenthetically here that at the same time Mr. Chouinard contends that in fact Ms. Lemay was quite willing to come and testify.  Her own affidavit states that she attended at 3 p.m. "to answer questions put to me by a jury which I believed was unbiased at the beginning of the inquest" and that she was making an effort to "accommodate the jury in its fact‑finding process." These statements do not, to my mind, sit well with the position of fear and apprehension she now advances, but I will not dwell on that inconsistency.)
• If Ms. Lemay fears that anyone who identifies with the grieving parents must necessarily be against her, that is unfortunate.  However, her fear does not entitle her to avoid the obligation every other citizen has, that is, to appear and testify at the Coroner's request if the Coroner or the jury feels her evidence will be useful.
• Ms. Lemay also seems to complain, through the letters I have mentioned, that particular witnesses were called at the inquest ‑‑ for example, Dr. Korn; that she is not "participating" in the choice of experts called; and that the Coroner has refused to put the "facts" before the jury.  None of these complaints, in my view, has any substance.  Under the Coroners Act, the coroner is required to examine on oath all persons who tender evidence and all persons having knowledge of the facts whom he thinks it expedient to examine.  I am not aware of any specific names Ms. Lemay has put forth in the several months this process has been adjourned, for examination by the Coroner; or of any refusal on his part to call a witness suggested by her who may have evidence to give.  Under section 37, "Any person whose interests may be affected is entitled to appear, to call witnesses, to examine and cross‑examine."  If Ms. Lemay wished to do this with any of the witnesses who have been heard, she or her counsel could have done so.
• But in this case, the Coroner has bent over backwards in deference to Ms. Lemay's request and supplied her with the autopsy report and list of witnesses and even parts of the police report to Crown counsel.  Ms. Lemay says she received this when she hired counsel, which I assume means in February.  Yet again Mr. Chouinard has, as far as I am aware, made no effort to cross‑examine any witness or to propose any witness of his own in opposition to anything contained in the documents he has had for some time.

• With all due respect, if the opportunity to find out what caused this baby's death has been lost ‑‑ and of course that cannot be said at this early stage, fortunately -‑ ­it is Ms. Lemay who seems to be doing everything in her power to obstruct it by insisting that it is about herself.  It is not about Ms. Lemay or her philosophy.  It is not a forum for her to answer criticism she has heard from third parties or in the press, nor for her to educate a jury on the topic of midwifery.  The inquest is about the death of one newborn infant, and it is in the interests of the public generally, especially his parents, that it proceed to its end.

    

       Accordingly, I do find Ms. Lemay did commit contempt in (a) leaving the Coroner's courtroom contrary to Dr. Pilley's direction to remain; and (b) refusing without lawful excuse to answer the questions of counsel at the inquest hearing on the 25th of May.

• I will also order that on receipt of the witness fee, Ms. Lemay attend at the resumption of the inquest as directed by the Coroner and that she give evidence in response to his questions, those of counsel, and any the jury may have concerning the death of Eli Foidl‑Gosnell, including questions concerning his delivery and pre‑ and post‑natal care.

    

       Mr. Chouinard assures me that his client will attend if I order her to do so, and therefore I take him at his word.  Mr. Hinkson may wish to stand down the issue of punishment to give the opportunity to Ms. Lemay to purge her contempt.  If my order is not obeyed, I will make myself available for such further orders as may be required, and I am around all summer for that purpose.

11 more annotations...

• he petitioner, the Board of the College of Midwives of B.C. ("the College"), brings a contempt application against the respondent, Gloria Lemay, alleging she has breached the injunction granted by Mr. Justice Curtis in his Order dated February 2, 2000, ("the Order").
•      Ms. Lemay was

• The appellant seeks release pending her appeal from her conviction for contempt of court entered by Mr. Justice Blair of the Supreme Court on January 4, 2002, and from her sentence of five months' incarceration and one year probation imposed by Mr. Justice Blair on July 24, 2002
• The appellant applied after conviction to have Mr. Justice Blair declare a mistrial. He dismissed that application on June 14, 2002
•    The appellant had earlier been charged with criminal negligence causing death and with criminal negligence causing bodily harm arising out of the death of a foetus during a birth at which she attended as a midwife. Her conviction for criminal negligence causing death was set aside and a conviction for criminal negligence causing bodily harm was substituted by this Court. However, on appeal to the Supreme Court of Canada, an acquittal was directed on both counts on the grounds that the foetus was not a human being under the Criminal Code and that it was not a part of the mother
• The Crown opposes Ms. Lemay's application for release pending appeal and is supported in that position by the respondent, the Board of the College of Midwives of British Columbia.
• The conviction was in respect of an order made in the Supreme Court made by Mr. Justice Curtis on February 2, 2000, which was entered into with the appellant's consent. The order permanently prohibited her and enjoined her from performing midwifery services, from receiving fees or remuneration in respect of such services and from holding herself out as a midwife or under any other name that would imply that she was a member of the College of Midwives of British Columbia.
• Suffice it to say that he found that the appellant assisted in ten home births over a five-month period for a fee of $2,500 on each occasion, all in breach of the injunction.
• There is no suggestion that if she were released pending her appeal that she would take flight to avoid the consequences of her conviction.
• This is not a first offender. Although she purged her contempt in 1995, the appellant was nevertheless found guilty of that contempt. That was in the case of the coroner's inquest. Five months is within the range for first offenders, and given that she is a second offender, I see no chance that the appellant could persuade a panel of this Court that Mr. Justice Blair imposed a sentence that was demonstrably unfit or clearly unreasonable in all of the circumstances. I dismiss the application for release pending appeal from sentence on the ground that the appeal is frivolous with s. 679(3)(a).

• Although there might well have been some confusion as to which order the alleged breach is related, the issues during the trial dealt exclusively with the provisions of the consent order and the affidavits referred solely to events occurring after the making of the consent order. The interim order specifically provided that its terms existed only until the making of a permanent order.

    

  I see little merit in the suggestion that the appellant was misled given that finding.

• As Crown counsel has pointed out, the alleged breaches particularized in the Notice of Motion all post-dated the order of Mr. Justice Curtis, as well, and the particulars of the allegations were set out in the affidavits upon which the Board of the College of Midwivesrelied in establishing its case. Those affidavits were, of course, delivered to the appellant before the hearing. I see little or no merit in the suggestion that there was a lack of particularity.

    

  [19]    Accordingly, I conclude that the first two grounds of appeal are weak.
• The next ground mentioned by counsel was that the appellant was not given an opportunity to cross-examine on the affidavit evidence. However, she had counsel and, as her counsel now (who was not counsel at the trial) has frankly pointed out, her counsel below considered whether cross-examination on affidavits should be undertaken. It was suggested to him by counsel for the Board that he might consider doing that, but he elected not to do so. There is no doubt, in my view, that the appellant had a right to cross-examine on the affidavits, but she chose not to assert that right.
• However, that an injunction should not have been granted is no defence to an allegation of contemptuous disregard of the injunction while it was extant. I see no merit in the eighth ground asserted.
• Crown counsel says that the primary concern here is for public safety. She points out that Mr. Justice Blair rejected the submission that the appellant should be given a conditional sentence for that very reason.
• First, she says that, although the appellant has stated in her affidavit that she will comply with any terms and conditions of release that I might make, this is her second conviction for contempt of a court order, which "speaks volumes" about the appellant's willingness to obey court orders. She emphasized that the appellant consented to Mr. Justice Curtis's order and that despite her consent, Mr. Justice Blair found that in the short period of five months she breached the order in respect of ten births for a fee of $2,500 each, or $25,000 in total.
• The Crown pointed out a factor that I think is of particular significance, which is that after her conviction and while sentence was pending the appellant again breached the injunction.
• Although the agreed statement of facts says that this incident occurred in January of 2001, counsel agree and have advised me there is a typographical error and, in fact, the incident occurred in January of 2002, within about three weeks after of her conviction by Mr. Justice Blair. The appellant, for a fee, assisted in a homebirth during which complications arose which required the mother to attend at the Burnaby General Hospital, where a caesarean section was performed. The caesarean section was found to be necessary because of foetal compromise. Fortunately, the mother and baby emerged in good health but, nevertheless, as Crown counsel submits, the appellant again deliberately and flagrantly flouted the order in a situation that created risk for the mother and the foetus.
• She submitted that the past performance of the appellant is the best predictor of her future conduct and that the court cannot put any reliability or faith in the appellant's promise to comply with a court order in the circumstances. Crown counsel submitted that the appellant has no formal medical training and pointed out that the management of a vaginal delivery is risky for the mother and the foetus. The appellant has been involved in two deaths arising out of that procedure, one in connection with the coroner's inquest and the other in connection with the criminal charges of which she was ultimately acquitted in R. v. Sullivan, 1991 CanLII 85 (S.C.C.), [1991] 1 S.C.R. 489.
• This is not a criminal contemnor who has defied an injunction out of perceived altruistic reasons such as blocking a road to prevent logging, where no risk of physical harm might come to any person. The appellant's conduct in breach of the injunction was for profit and carries with it inherent risks to mothers and to their unborn babies. In my view, the safety of the public is very much a concern on this application.
• The appellant has not satisfied me that she ought to be released pending her appeal and I dismiss her application.

17 more annotations...

•  Ms. Lemay appeals her conviction for criminal contempt pronounced by Mr. Justice Blair on 4 January 2002.  The learned trial judge held Ms. Lemay to be in contempt of an order pronounced by Mr. Justice Curtis on 2 February 2000.
• THIS COURT ORDERS that the Respondent Gloria Lemay is hereby permanently prohibited and enjoined from performing the following services for the purpose of midwifery

• the conducting of internal vaginal             examinations of women during pregnancy,       labour, delivery and the postpartum             period,

    

  (b)  the management of spontaneous normal            vaginal deliveries; and

    

  (c)  the performance of episiotomies and             amniotomies during labour and repair             episiotomies and simple lacerations.

• Except when:

    

   

    

  (a)  practising a profession, discipline or other    occupation in accordance with the Health    Profession Act, R.S.B.C. 1996, c.183, or    another Act; or

    

   

    

  (b)  providing or giving first aid or temporary  assistance to another person in case of    emergency if that aid or assistance is given without gain or reward or hope of gain or reward.

• THIS COURT FURTHER ORDERS that the Respondent Gloria Lemay is hereby permanently prohibited and enjoined from recovering any fee or remuneration in any court in respect of the performance of services for the purposes of midwifery as outlined above;

    

   

    

       AND THIS COURT FURTHER ORDERS that the Respondent Gloria Lemay is hereby permanently prohibited and enjoined from using the title “Midwife” or any name, title, description or abbreviation in any manner that expresses or implies that she is a registrant or is associated with the College of Midwives of British Columbia.
• Blair J. found that the appellant controlled and managed spontaneous normal vaginal deliveries, and was thereby in breach of the injunction.  Counsel for the appellant conceded, both before Blair J. and in this court, that the appellant also occasionally performed internal vaginal examinations, episiotomies and amniotomies.  The appellant also concedes that she received pay for her services as a traditional birth attendant, though she denied receiving any additional payment for any vaginal examinations, episiotomies or amniotomies that she occasionally performed.
• Before the trial judge, counsel for Ms. Lemay (not counsel on the appeal) did not argue that the case could not be decided without cross-examination.  He did not ask to cross-examine on the applicant’s affidavit material.
• [9]         Given the concessions that appellant’s counsel was prepared to make both before the trial judge, and in this court, as to the appellant having performed the reserved acts, cross-examination on the affidavits would have served no purpose.  Subject to what I have to say on the “emergency defence” issue, the critical facts were not in dispute.  Cross-examination could have gone only to matters that were peripheral or collateral to whether the appellant’s conduct was in breach of the order.
• There was no evidence to suggest that the appellant did not know what the phrase means.  She consented to an order enjoining her in those terms, and must in the circumstances be taken to have understood what it meant.  Given her long history of activity as a midwife, it is reasonable to expect that she would know what the phrase meant, or else to have raised a question as to its meaning before the restraining order was made.
• The appellant performed an amniotomy at a birth on 30 November 2000.  The evidence was that the appellant attended on the mother for a home birth on 29 November 2000 at about 5:00 p.m.  The mother deposed that because her water had not broken she wanted something to be done “urgently”, that she did not want to go the hospital, and that she asked the appellant “if she could do an emergency membrane release”.  She deposed that the appellant encouraged her to break her own water and when she was unable to do so, the appellant did it for her.  This amniotomy was performed at about 11:30 p.m., some six or seven hours after the appellant arrived at the mother’s home.
• There was evidence that the appellant performed an episiotomy at a home birth on 27 January 2001.  There was evidence that, according to the appellant, the delivery was complicated and that she cut a two part episiotomy.  When the birth did not progress, a person in attendance was asked to call 911.  Ambulance and paramedics arrived, but the baby was delivered without their assistance.  The appellant did not stitch the episiotomy and the mother attended hospital a day or two later, so that procedure could be done.  The mother deposed that from having attended the appellant’s classes “I know Ms. Lemay would never cut an episiotomy unless it was to save a life”.
•   There was evidence that the appellant performed an internal vaginal examination at a birth which occurred in the appellant’s home on 5 April 2001.  The mother deposed that the appellant seemed very concerned about doing the examination, that the mother was aware of the “legal restrictions against her”, and that she “believed it was urgent at that time to know my dilation because I was beginning to panic and fight the birth”.
• The evidence is uncontradicted that the appellant’s attendances at labours and deliveries were planned in advance.  Her clients signed waivers prepared by, or on behalf of the appellant, in which she is described as a “traditional birth attendant”, acknowledging that the appellant could only give medical assistance in the event of an emergency, and stating the parents’ awareness of s.5 of the Midwives Regulations.  Ms. Lemay’s clients attended her educational programs prior to their deliveries.  The appellant was paid $2,500 for her assistance during each pregnancy, labour and delivery.  She earned her living by providing these services.  She was an experienced midwife, and voluntarily undertook to be present as these home births, for reward.
• The affidavit evidence did not suggest that in the absence of the amniotomy, the episiotomy, or the vaginal examinations, any of the mothers or their fetuses would have been in danger of death or injury.  Episiotomies are routinely performed in the birthing process.  A vaginal examination is a diagnostic tool only, and could not properly be described as “first aid or temporary assistance”.
• There is, as the intervenor submits, simply no air of reality to the suggestion that any of these acts were performed in emergency circumstances.  The appellant performed all of these acts in circumstances where she was voluntarily present, for reward, and where she foresaw or reasonably ought to have foreseen, that events might transpire that would require her to perform the reserved acts.  There was sufficient evidence for the trial judge to conclude beyond a reasonable doubt that the appellant did not perform the prohibited acts in circumstances which brought her within the emergency exception.

• The uncontradicted evidence before the trial judge was that the appellant openly advised her students, clients and others of the court order which prohibited her from performing any of the acts described in s.5 of the Regulations, and that she then proceeded, on repeated occasions, to violate the terms of the order in the presence of her students, clients and others.  She asked her clients to sign agreements acknowledging that she was not registered as a member of the College of Midwives, and that she was not permitted to perform the acts described in the order and the legislation.

    

  [39]   This conduct challenged the court’s authority in a public way.  It was calculated to show that the court order was of no force or effect, and to encourage or promote public disrespect of the court.

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• I was Gloria Lemay's midwifery partner for many   years prior to regulation in January, 1998
• 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 and 14 other   women were failed by the College, and we later   found out that there had been cheating on the   exams.

  • N.B. This page has been removed from the website.

  • So Ms. Sullivan had been practicing midwifery for "many years" prior to regulation, and yet failed the College of Midwives exam. She implies this was because others cheated on the exam.
• 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

  • Possibly. Prior to regulation, what avenues other than prosecution existed to protect the public from incompetent or unethical midwives?
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• 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.

  • However complex the other issues surrounding this case, the one thing that seems never to have been in question during the appeals was the fact that Ms. Sullivan and Ms. Lemay's incompetence contributed to the death of Jewel Voth's baby.
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• We received no support   from the Midwives Assoc. of B.C., and a few midwives   worked actively with the prosecution to convict   us.

  • Is it possible that they did this because they felt Ms. Sullivan and Ms. Lemay were dangerously incompetent providers who reflected poorly on the profession of midwifery?
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• 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.

  • Again, what Ms. Sullivan attributes to personal malice may, in fact, reflect the fact that these other midwives believe Ms. Lemay poses a danger to her clients.
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• We have a disciplinary body for   midwives and they have the funds to launch legal   action against their own members and others.

  • Yes. This is what affords registered midwives the same protection from prosecution Ms. Sullivan claims doctors have long enjoyed. In exchange for that protection, health professionals subject to the Health Professionals Act place themselves under regulation that is designed to protect consumers from incompetent and unethical practitioners. And yet, Ms. Sullivan and Ms. Lemay decline to meet (or are unable to meet) these requirements.
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• And while the   College of Midwives succeeded in getting an   order passed that prohibits Gloria from calling   herself a registrant of the College of Midwives   of BC, Gloria can indeed lawfully attend births   and receive payment for her services.

• This is misleading. While the injunction did not prohbit Lemay from attending births for payment, it did enjoin her from performing acts that are integral to providing intrapartum care, specifically:
  
  1) Conducting internal vaginal exams;
  2) Management of spontaneous, normal vaginal deliveries;
  3) Peforming episiotomies or amniotomies, or repair of episiotomies or lacerations.
  
  This meant that Lemay could only attend births essentially as a doula or other emotional support.
  
  Lemay was subsequently found in contempt of this injunction--and sentenced to jail time--when it was discovered that she had performed many of these acts in her capacity as a "private birth attendant." Her attorney attempted to paint these incidents as providing assistance in an emergency, which would have been allowed under the stipulations of the injunction. However, the justice didn't buy it, noting that Ms. Lemay had knowingly placed herself in positions where such acts could be expected to become necessary, that she brought with her all the equipment necessary to carry out the prohibited acts, and that she received payment for carrying them out. - Squillo McBoingBoing on 2010-01-31

• What if there were no pelvis?
• Every woman who is alive today is the result of millions of years of natural selection. Today's women are the end result of evolution. We are the ones with the bones that made it all the way here. With the exception of those born in the last thirty years, we almost all go back through our maternal lineage generation after generation having smooth, normal vaginal births. Prior to thirty years ago, major problems in large groups were always attributable to maternal malnutrition (starvation) or sepsis in hospitals.

  • We are here today not because
    "generations" before us generally had "smooth, normal" births; we are here because a certain proportion of us survived despite the evolutionary trade-off of large skulls (enabling big brains) and small pelvises (enabling us to walk upright). A certain proportion of our ancestors did not survive. All it takes for a species to continue is for the survival-to-childbearing rate to outpace (even slightly) the death rate.

  • There is no "end result" to evolution; it is an ongoing process.
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• We do know that at least 15 percent of cesareans are unnecessary but the parents are never told. There is a conspiracy among hospital staff to keep this information from families for obvious reasons.

  • No, we don't "know" this. In fact, it seems likely that a much larger proportion of c-sections is are unnecessary; it's just that we don't know beforehand--and very often not afterwards, either--exactly which c-sections are unnecessary. The 15% "recommended" number for c-section was invented out of whole-cloth, as WHO has recently (albeit tacitly) admitted.
• What the literature indicates now is that when a nurse with a stethoscope listens to the "real" heartbeat through a fetoscope (not the bounced back and recorded beat shown on a monitor read-out) the cesarean rate goes down by 50 percent with no adverse effects on fetal mortality rates.
• So that pelvis ended the shoe size theory forever.
• That's the bottom line on pelvises—they don't exist in real midwifery. Any baby can slide through any pelvis with a powerful uterus pistoning down on him/her.

  • So, no mothers and babies ever die from obstructed labor?
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• The thing to remember about high blood pressure is that the body is trying to protect the baby and the mother by sending the BP up. Why it does this we don’t know, but even the doctors don’t want to bring it down to “normal” 110/70 levels. They are happy if they get it down to 140/90 and they stop medicating there.

• Your body could build up a resistance to the antibiotics and so could your babe's body.

  • Um, that's not how antibiotic resistance works.

• First of all, yes, it’s possible to hemorrhage and bleed to death quickly in birth IF YOU HAVE A SURGICAL WOUNDING. Women die from bleeding in cesareans and with episiotomies.

  • Tell that to the estimated 130,000 women who die of PPH each year; the vast majority are in the developing world and don't have access to either episiotomy or cesarean section.
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• Think about it--would any midwife ever go to a homebirth if it was possible for the mother to die from bleeding in five minutes? I know I wouldn’t go if that could happen.

  • Let's have a show of hands: how many midwives believe it isn't possible for a woman to bleed to death in five minutes? (Cue crickets...)
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• Dr. Kloosterman was the head of Dutch maternity services for many years and he was a real friend to homebirth and midwifery. He told us that you have AN HOUR after a natural birth before the woman will be in trouble from bleeding. Does this mean that you wait for an hour to take action with a bleeding woman? No, of course not. If there’s more blood than is normal, you need to call 911 and transport to the hospital within the hour, but you’re not going to have a maternal death before an hour is up.

  • So how long do you give her to bleed before calling for competent help to rescue you and your client? And do you base it on scientific evidence, or Dr. Kloosterman's word?
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• What doctors won’t tell you is that the most severe cases of postpartum anemia are in women who have had cesareans. Major abdominal surgery results in anemia.

  • Gee, I wonder if the indications for the cesarean (abruption? rupture... anyone?) could possibly have an effect on the anemia rate? Nahhhhh....
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