John Myers: Medical Assistance in Dying and Bill C-7

This podcast was recorded on the ancestral lands on Treaty One territory, the traditional territory of the Anishnawbe, Cree, Oji Cree, Dakota, and the Dene peoples, and on the homeland of the Métis nation.

This is Humans, On Rights. A podcast advocating for the education of human rights.

Here's your host Stuart Murray.

My Guest today John Myers was called to the bar in Manitoba in 1991 and is a partner at Taylor McCaffrey LLP.

He practices primarily in the field of intellectual property protection and enforcement.

John has appeared before all levels of court in Manitoba, the federal Court, the Federal Court of Appeals, and the Supreme Court of Canada. John it's an honor to welcome you to this edition of Humans on rights.

Great to be here.

So john there's something else that I want to, I left out purposely to continue this introduction because it will deal with what we're going to talk about today and that is the fact that you're a three time recipient of the Manitoba bar associations pro bono certificate of recognition for your work and public interest advocacy and in particular a co recipient of the access to Justice award for your work representing three Manitoba's that requested carter exemption orders allowing them to receive medical assistance in dying.

We're going to talk about that in detail but I just want to close again by acknowledging the kind of work that you've done that you did receive in 2018.

You were given the law society's Richard J scott award which recognizes excellence in promoting the rule of law, jOHn there's a lot to unpack here but I do want to go back to the fact that you were involved in Manitoba's that requested the carter exemption orders.

There's a lot of conversation today in Ottawa around Bill C7 but I wanted to sort of start at the beginning.

You know, you're an expert in this field and your local and I'm delighted to have you on this podcast.

Can you give a sense of what is made the definition?

And sometimes people make reference to assisted suicide.

Can you just maybe give us a sense and let's start there and then we'll start this conversation please.

Sure.

Well made is the acronym for medical assistance in dying.

That was formalized by Bill c.

14 by the Parliament of Canada.

It was also referred to as physician assisted death prior to the acronym made being developed.

And as distinguished from assisting suicide.

Medical assistance in dying involves the assistance of medical professionals.

So it's a way of assisting a person to terminate their life.

But it's it's distinguishable from the Criminal Code provisions that we have in Canada which prohibit assisted suicide.

So if you, my friend stu were in very difficult circumstances and you wanted some assistance in ending your own life.

I can't do that for you as much as I would want to help you.

It would be illegal for me to do that.

But what the Supreme Court of Canada did in the Carter case in February of 2015 was it used an interpretive device called Reading down?

So the criminal code provisions still is there.

But they've created now amendments to the Criminal Code and the Supreme Court of Canada in finding a charter right laid the groundwork for the Criminal Code amendments that sets out a whole regime that will allow a medical professional, typically a physician or nurse practitioner and then a team of medical professionals that work with the lead person to assist somebody in in terminating their life.

So we've had assisted suicide around for a long time.

People have helped others end their lives at great risk in some cases people have been prosecuted for that and keep in mind that committing suicide is not a crime.

If I tried to commit suicide and I didn't succeed, they're not going to come to the hospital and charge me criminally for trying to take my own life.

But if somebody does help me then that's a criminal offense and it remains a criminal offense in Canada.

But we at least now have Criminal Code provisions that allow for medical assistance in dying.

And the Supreme Court of Canada as I said before, put all of that in motion in its decision in carter.

But you know, when you when you look at the history here, you have to actually look way back to the Sue Rodriguez case Which occurred back in the early 90s.

And so john let me just ask you on this question is that if somebody were to say, when did medically assistance in dying, what what what is, what's the beginning?

Would you say that that would be sort of where it started, at least from a conversational and a legislative standpoint.

I'm sure that there was discussion in society about that before Sue Rodriguez launched her own court challenge to the assisted dying provisions in the Criminal code.

But I would say that when it was really coming into force in Canadian Discussion was in the early 90s when she launched her court challenge and she was a victoria based woman who had alS or what's commonly known as Lou Gehrig's disease.

And she teamed up with an organization actually based in victoria, the right to die society which was founded by a gentleman by the name of john Hoffs is And the two of them formulated a court challenge which made it all the way to the Supreme Court of Canada.

And in a decision in 1993, the court split 54 and really there wasn't enough of a societal consensus back at that time to allow her the remedy that she wanted.

Interestingly enough though, she was able to get a physician assisted death at least that was what was reported by some of the people who were very supportive of her like Sven Robinson and some physicians, no one was ever charged, none of the details were ever published.

But she did in the end she did receive what she was I was looking for.

And john let me just ask on that sort of the process to here's a woman in victoria's you say has a L.

S.

Um and wants to basically at that point look for a way to enter life.

How is it that it gets from a conversation in Bc to ultimately get up to the Supreme Court?

Well, there was an initial court challenge to the provisions.

You see her lawyer in that particular case, wanted to have the entire section of the Criminal Code struck down.

So in effect there would be no law against assisting a person to commit suicide.

And the main concerns of course we're just you know, vulnerable people.

People with disabilities being very concerned that this might represent open season on their lives from family members who might not have the most noble of motives wanting to you know, get them out of the way.

And what are we saying as a society if we're liberalizing an ability for people to help others to commit suicide.

And so there wasn't much of a societal consensus.

It did go to the B.

C.

Court of Appeal where at least in the dissenting judgment, there was a path that would have allowed some form of medical assistance in dying went to the Supreme Court of Canada and MS Rodriguez was not successful in getting the remedy that she was looking for.

And it took another Almost 20 years for the issue to come back before the Supreme Court.

And again it had to start to make its way up the system until it reached the Supreme Court of Canada again In February 2015.

For the court to look at the issue again and ask itself, you know, has it have circumstances changed?

Is society ready to grant people the kind of request that Sue Rodriguez was asking for Back in 93 And keep in mind that this is a charter right now that we have as Canadians to have medically assisted death based on the Supreme Court of Canada's decision in carter and some people don't fully understand what that means.

And it was the same issue for stew Rodriguez as it was for uh Miss carter, why should I have to take my own life through what are often very tragic means through pill overdoses or jumping off a balcony or getting hit by a train, whatever form suicide could take, why should I have to leave this planet in a way like that or at a time when I'm really not ready to but because I won't be able to with a L.

S.

I won't be able to lift the pill bottle and the glass to take the fatal dose of medication or do what I need to do to commit suicide.

Just because I won't be able to physically do that.

That's unfair.

And that's a breach of my charter rights?

And the Supreme Court of Canada found that the provisions of the criminal code that prevented a physician assisted death were unconstitutional.

And so what they carved out was an exemption that allows people that met certain criteria to be able to receive a physician assisted death.

But what the court did was they suspended the operation of that for one year to give the federal government an opportunity to legislate in the area.

And what happened was and we'll talk about this, there was a bit of a delay and it didn't get enacted for about 16 months.

The court also held later that when the federal government asked for an extension of time, the court permitted people who met the criteria that they had established in the carter case to apply for an exemption so that they would be allowed to receive a physician assisted death while the government was formulating a new law.

So john you mentioned the carter case and it's quite, we've talked about this offline and I've heard you speak about it many many times, but maybe just share with those that are listening.

What what is the carter case?

What did it mean?

And in terms of advancing this conversation that we're talking about today with made well in carter, the Supreme Court of Canada was dealing with a court case that had been started by lee carter Gloria Taylor Hollis, johnson and William show set and the court had to deal with.

As I was saying before, ah can we grant somebody a physician assisted death that meets certain criteria in a way that will not be the subject of abuse And still preserve the protections that are provided by the criminal code.

So what they established in the Carter decision and this was released on February 6 2015.

That you had to be an adult person.

That you had to be qualified to receive medical services in Canada.

But the court said you had to be an adult person.

That you had to clearly consent to the termination of life and that you had a grievous and irremediable medical condition that causes enduring suffering that is intolerable to the individual in their circumstances.

So this is for people who are being offered a variety of treatments that are no longer options that are acceptable to them.

And that essentially is what the carter case established.

And as I said, Canada had a year to enact legislation.

And during this, this all came to be during the harper administration.

And during that year, an election was held in october When the Liberals came in in October of 2019.

They discovered that the file had not been advanced significantly and went back to court and obtained a four month extension of time To legislate the court.

The government wanted six months in the court gave him four months but now we had this carter criteria to deal with.

So the Supreme Court in granting the extension of time also allowed people who met the carter criteria that I just mentioned before to apply to court for a carter exemption order and those persons could be assisted before the new legislation was passed and there would be no liability to the physicians, the nurses, the pharmacists, social workers, anybody who was involved in providing the service.

And there were 31 Canadians across Canada who made a Carter exemption application and and three of them were from Manitoba, so which, which is what you were involved in.

I helped the three families get through the carter exemption process, which was pretty difficult process for families who are clearly about to lose a loved one.

Now have to focus a certain amount of their energies on court applications affidavits setting out the criteria, a spouse giving an affidavit why they supported their spouse's decision.

Um and and just satisfying the court that all the safeguards were in place.

But you know, a stress that these folks could certainly have done without, but that's what the Supreme Court of Canada essentially said, you'll have to do if you want one of these orders.

And so that's what we did.

And john just so I understand as you see, there was an exemption there, the the on on the carter decision, understanding that there had been a change in government and so they allowed the new government would have been the Trudeau government to look at this.

Was there ever a sense because you were directly involved in this in Manitoba?

Was there ever a sense that something might change?

That that that something could change while you're in the process of using that carter exemption?

Well, I think a lot of provinces needed to catch up because here you have the court saying, okay, we're going to grant the government of four month extension to legislate.

You can have this right if you meet the criteria, but not all provinces were as well set up as Manitoba was to be able to deal with those requests.

So here are college of Physicians and surgeons had already passed a bylaw and established a protocol that would need to be followed.

And we already had a maid team that was coming together, a dedicated group that would look after those first three cases, the same people, the same expertise being brought to the table.

So we were in a pretty good position to deal with this.

But in some provinces, I think it was more of a challenge.

But In the end, 31 people took the opportunity to receive a medically assisted death prior to the changing of the federal law.

And and so john loved to explore a little bit about, you know, your personal involvement with this because, you know, it's I understand, you know, there's a legal element and and you know, you've been awarded for your ability to sort of understand the law.

But the notion that this is this is law, but it's got to be tremendously emotionally compassionate that is calling upon you to sort of be a part of this whole process.

Would you just share, what did you how did you feel going through this?

Some of the elements that you had to deal with personally and maybe talk a little bit about what the team just talk about.

Some of the people that made up this team that you were involved in for these three Manitoba people that did receive this carter exemption.

Well you're you're right, it's it is very emotional because you're working with an individual who wants to who's in a lot of suffering and we're not talking about people with disabilities that are enduring a long path ahead of them.

These were people that had acute conditions were suffering tremendous pain that was intolerable to them had been through any number of treatments already and we're just not getting anywhere.

So they were frustrated with their lack of progress and we're suffering greatly.

And then you're dealing with, as I said before, you're dealing with a spouse and family members who know that they're in their last days or weeks with their loved one and we were in a bit of a race against time because at that time and still to this day you need to have mental capacity to be able to give your consent to the team or the individual physicians that are with you at the time, you're going to receive the procedure.

So there's always a risk when you're dealing with pain management and people who are suffering that you're going to medicate them in ways that are going to diminish their ability to have capacity and to consent.

So on.

The first one that I worked on, we were in a bit of a race against time and we also, we were only the second case in Canada to be decided.

It was a decision of Chief Justice Glenn Joyal.

And so we didn't really have a lot of precedent material to work with.

So the legal team that we put together, I had to think fairly creatively in terms of how we were going to do this, there were a lot of privacy considerations that we had to be concerned about.

Not only the privacy of the individuals who are going to go to court, but we also have the privacy of the medical practitioners because there's a certain stigma associated with being a provider in this area, not everybody in the community or in the medical community supported, made as an option.

And so we were trying to protect the identities of all of those people involved.

So we had to file court materials where there was one set of materials for the parties and the judge, but then respecting the open court principle, we have to follow a whole other set of materials that were open to the public.

So the public could understand exactly what we were doing here.

Getting the media on side.

We didn't even have to get a publication ban in the case, except during the course of the hearing.

The judge acknowledged that if there's a slip or something happens where we say something on the record that should not actually go public, that there would be an interim ban on publicizing certain types of information.

But we didn't never needed a formal ban because we were able to put materials together that told the story of the people that were asking for the orders, what the law was and what the medical professionals were going to be able to do To make sure that there were all the safeguards in place that somebody should have, who's going through this process.

So, it was certainly not something that in my 30 one years of practice I'd ever experienced before.

And I don't think I'll ever experience again.

There was there was a certain intensity to the whole thing.

And I think after it was all over, I certainly felt like I had been through quite the experience.

I don't know that I would say that I had post traumatic stress disorder from it, but I certainly, you know, having met people, having gone through an intense Experience with three different families, and then when it's all over, and it's done.

You know, you've, you've lost three people and you've participated in that journey with people.

So it's, it was certainly an intense process and there was a lot of media interest.

So at the time I did quite a few interviews with different media outlets and I did some public speaking at conferences because there was a lot of misunderstanding about what exactly was going on here and some people had a lot of concerns about whether we were going too far as a society and tell us about who these people are.

So it was for for a variety of reasons.

It was, it was a pretty intense time, but one where, you know, I made a lifelong friendships I think with three families and we continue to stay in touch.

And so that's a nice thing to be part of.

Well and you don't do it for these reasons, John, but I mean you're a part of history as we are going to start talking about Bill 14, Bill C7 et cetera.

But you know, I just come back to if this is the appropriate time just to ask you because you mentioned one of the areas when the decisions are being made in the courts is the question around safeguards.

Can you just talk a little bit about, you know, how did you ensure from a, from a legal standpoint, what's those, what does safeguards look like?

Well, I think during the carter exemption period we had to turn to the college of Physicians and surgeons obviously who governed the practice of physicians.

And there was some input from the college of nurses and pharmacists because they all play a role and setting up a regime where there was not only a first assessment of the person who wanted to receive made, but that there were subsequent assessments done by a separate physician.

Again, getting to the bottom of a few questions.

First of all, did they meet the criteria that had been established in carter?

Was there any sense that the individual was under any pressure from outside influences?

Did the person fully understand other treatment options and a really a caring approach to trying to find out whether there were other ways to alleviate that person's suffering other than choosing made.

And so all of those kinds of assessments were being made.

And when we went to court we had to serve the Attorney General of Canada who had a lawyer at court, we served the Ag of Manitoba who had to, lawyers at court that we had to deal with on the terms of the order and how everything would happen and how will the death be reported?

What do we do with the pharmaceuticals that have to be you know, taken from a dispensary?

And then what do we do if there's any leftover?

How are they removed all of these sort of technical issues that are being looked at by the to governments, then we had a lawyer representing the actual physicians that we're going to be involved in the process.

And then somebody from the Winnipeg Regional Health Authority, a lawyer representing them.

So as you can see, I'm representing an applicant on the other side of the table are all of those societal interests that are represented to make sure that this is being done in the most appropriate way and and all of the safeguards are being respected.

And we were able to present to the judge a picture in the materials that we filed.

That this was a very well thought out, carefully considered decision by the person involved And also the team that was going to be providing the services in one case, the person had seriously advanced ALS and we need a speech language pathologist to help us interpret what she was telling us and to ensure that she was consenting to what she was about to go through.

In another case, we needed a social worker, we needed a psychiatrist, all of these things contributing to making sure that we had the consent that we needed.

So those are the kinds of safeguards That were put in place without legislation.

And now, here we are, several years later with the Bill C14 as you refer to And and bill C7 that have a lot of these safeguards built right into them.

But we were working with College of Physicians and surgeons guidelines.

and quite frankly a lot of common sense from the people who were involved to make sure that we could get in front of a judge and satisfy a judge that all of these considerations were being looked into.

You know the last thing that you want to be doing is providing a service like this which is going to end somebody's life without exploring whether that person has considered all available alternatives.

So I think that was a very important part of what everybody was trying to do Well.

And you obviously were successful in the sense that of the 31-3 in Manitoba which you were and your team were involved in.

And again, you know thanks for sharing that.

It's an emotional personal part of your life, your professional life so I really appreciate you sharing that with with with me and the people listening.

Well you know it was an honor to work with those families and I can tell you that the main team in Manitoba, the professionals who have signed up to provide this service which is not easy.

Yeah it's not easy to provide palliative care services, it's not easy to provide maid services.

They're they're extraordinary people.

Again that's a whole other if I could use the word family in the big sense that you start to become involved with on an ongoing basis.

Um john maybe we could just sort of shift a little bit from the carter decision the carter exemption and then into Bill 14, which will eventually take us to see seven where, where we talk about today.

But Just again walk us through kind of the transition that took us to 14 and some of the issues challenges some of the good things And then where we get to see seven.

As I said, the The Carter exemption was extended for an additional four months.

So it was until June 17 of 2016 That Bill C14 came into law and there was a lot of debate around what to include in the law how far to go with this new charter right that had been established in carter people very supportive.

Some people are very concerned about where we were heading as a society.

It went up to the Senate back then who came back with certain changes that they wanted to see.

So an interesting interplay between the house of commons and the Senate to come up with The final version of C 14.

What they came up with in the end was five key criteria.

One you must be eligible to receive healthcare services in Canada.

So this isn't sort of a die death tourism uh country.

You you have to actually be an established resident here.

You must be at least 18 years of age.

You have to have a grievous irremediable medical condition and that comes out of the carter decision.

The person must make a voluntary request and the person must give informed consent.

So those were the basics and then what is an irremediable medical condition?

Well, it has to be serious, incurable illness, disease, or disability.

And it had to be in an advanced state.

The person has to be in an advanced state of irreversible decline in capability.

So that was generally what the legislation required.

You must be suffering, enduring physical suffering that is intolerable to them and cannot be relieved by a treatment acceptable to them.

So that comes out of the carter decision.

And then the key provisions that was quite controversial.

Natural death has become reasonably foreseeable, taking into account the medical circumstances of the person.

There was no need to be specific for like you didn't need to have a specific prognosis or a specific length of time.

But as a general rule, the practitioners were trying to Look for somebody who had maybe 4-6 months to live with their current condition.

And what you're doing is you're alleviating the suffering of having somebody Live out those 4-6 months and to help them out earlier helped them out of their misery.

Earlier.

And there were a series of safeguards that were put into the legislation.

And the most important safeguard in the end was an ability for the person to consent to the procedure.

Right up until the moment before it was carried out.

So here you are, you have to maintain your capacity so that at the final moment of your life you can say to the provider, yes, I'm ready to go.

I understand what's going to happen to me.

I understand that there are other treatment is available and I don't want any of it.

I want to go.

That's in essence what you have to be able to communicate.

However you can do that.

I was just gonna ask you that question in terms of you know, the ability to kind of communicate that I you know, as you and I freely talk and use hand signals and all sorts of things.

Was there a concern about what that communication might look like and some concerns about how realistic would that communication actually be from a legal interpretation?

Well, I think it's it's like any decision that's made.

You have to be able to demonstrate that there's capacity to sign a will to sign a power of attorney.

The lawyer who is meeting with you has to be satisfied that you understand the nature of the decision you're making and you can communicate that.

And certainly as a lawyer over the years, I've worked with people with disabilities for one reason or another who have explained what they're about to sign thoroughly and they can mark an X.

Because that's the as able as they can be and I am satisfied that that represents their intent.

I've even had situations where I've held a pen and helped somebody to achieve what they want to do in this particular case, you'd be able to give whatever verbal signals you could give.

The physician has to be satisfied that it is a consent.

That's why speech language pathologists who are also involved in some cases, because some people who are dealing with certain types of disability would have a difficult time articulating vocally what they wanted.

So you'd have somebody who would be there to ensure that their voice was was heard, right?

That's how that a safeguard would be actualized.

And I'm sure that this has been played out in many ways in many settings.

But the bottom line is the person who's about to provide the service has to be satisfied that the person hasn't changed their mind and the person has to be notified.

You know, as this is unfolding, you have the right, you do not have to go through with this, You have the right to change your mind.

This is not some runaway train here.

If you have changed your mind, that is perfectly okay.

And john when you, you refer to sort of the team, you know, the the team around made and when you get to the point that we're talking about now where as you say, somebody has to make the decision that the question was asked and the person that is requesting made, you're satisfying a person or that team does it?

Is it that sort of all everybody have to be involved?

Or is it one person who would basically say I've asked the question, I'm satisfied we're going to proceed.

You know, I think in many settings, people have chosen to receive made in the company of their families and I would think I haven't been at one, but I would think that the, the lead practitioner, whether it's a doctor or a nurse practitioner, would want to minimize the number of people who have to be there in the room.

So I would presume that in most settings it would be one or two medical professionals who would be there in the end.

Uh, you don't have to, you're not going to bring everybody else who's been involved in getting the individual to where they are.

I'm glad to hear that because you know, then there's always the element of dignity.

And I mean, it's, as you said, it's incredibly emotional process to begin with.

So, thanks for clarifying that.

I think preserving people's privacy and dignity is very important.

So, Bill 14 is on the books And you know, today, there's lots of conversation around Bill C7 Walk us through from 14 to C7, some of the concerns, some of the issues, um, your views on some of the elements and uh, and where we're at today.

Well in Bill C14, the Minister at the time Jody, Wilson rebelled and the Minister of Health jane Philpott both acknowledged and the government itself acknowledged that this was going to be an iterative process.

This wasn't where we're going to end up Was made.

That this was legislation now to try and address some of the issues but they weren't going to be dealing with all of the issues that were being discussed at the time.

So they left three issues on the table.

The first is mature miners.

So what do we do with 17 or 16 year old where courts have found young people who are sufficiently briefed on their circumstances to allow them to refuse treatment?

What are we going to do with them now when they're 17.5 and they meet the criteria.

Are we going to continue to refuse them?

The right to receive made.

So the mature miners issues on the table.

The second issue was where mental disorder is the sole underlying condition and that's in front of us and C7 which will come back to So what do we do in those circumstances?

And then advanced requests So we can in our own advanced requests and healthcare proxies, we can tell our proxy what we want in terms of treatment and what not to start.

We can tell people close to us if I can't speak for myself.

My health care directive says do not start chest compressions.

Do not put me on a ventilator.

Do not put me on a defibrillator.

I want to go.

But we can't do that with meat.

We make a distinction between acts of omission where the health care provider is omitting to provide a treatment modality.

But we're very reluctant to sanction acts of commission, which is, if I look like this, if this is the menu of what my life looks like, you can inject me and take my life, we've made this distinction between, okay, she said, don't put her on a ventilator, she's going to die if we don't do that.

But she's made a choice not to receive a treatment will respect that.

But we're not prepared on the other side.

If you know, a person has been in a terrible accident, they're not likely to recover any reasonable resemblance of what their life once was.

And we put in a healthcare directive in those circumstances.

If this is the way I look, I want you to end my life by taking an act, we can't do that right now.

So that was left on the table.

So john let me explore that for just a second.

So, you know, there's a lot of people to talk about health care directives.

So just so I understand what you're saying is today as you're able minded, etcetera.

You're putting your will together with your family.

You can not in a health directive say if I get to a certain stage.

I want you to invoke made right if I'm ever diagnosed with Alzheimer's or I'm showing dementia and I've now sunken into dementia.

This is your cue to apply for Made for me.

You can't do that cannot do that interesting.

Okay, thank you for that clarification.

And so Bill C 14 left a lot of people unhappy on both sides for many.

They didn't think that Bill C 14 went far enough.

The government just was not prepared to to tackle all of the issues.

People were reminded that the Supreme Court of Canada didn't make this reasonable foreseeability criteria in carter.

That was something that the Government of Canada decided to include in the legislation And a lot of people are upset that advanced directives weren't recognized at the time of Bill C14.

The problem that we've just talked about which is I can have this healthcare directive where I authorize my proxy not to start treatments or to withdraw treatments but not to actually end my life if I'm in a state that I really do not want to continue living in.

So that was left undone.

And and the the government by the way, consulted broadly after C.

14, they even referred those three issues that I just mentioned.

Two different councils to receive feedback.

The Council of Canadian academies who wrote extensive reports, there were big surveys that were done that were open to all Canadians to respond to, to express their views what ended up happening was to individuals in Quebec decided to bring a court challenge And they challenged the provision in Bill c.

14 that required that death be reasonably foreseeable.

These two people came from the province of Quebec.

Glad you and Mr Trudeau.

And they issued a charter challenge to the need for a person's death to be reasonably foreseeable.

And after a trial on September 11, 2019 the Quebec Superior Court struck down the requirement that death be reasonably foreseeable.

Faced with that decision.

The Quebec and Canadian governments could have appealed but chose not to.

There is some criticism right now of them for not appealing the decision and seeking some guidance from the Supreme Court of Canada.

But they didn't appeal.

The Quebec Court suspended the operation of that for six months and then they have been to subsequent extensions of time.

And there's some pressure on the government right now because the next one expires on February 26.

So the federal government is under some pressure to get the new legislation past what the court did as well.

Is it granted what's called a constitutional exemption to both Mr True show and Madame glad to.

So if they wanted to receive made following receiving the decision, they were now able to get it without any problem.

No more waiting for them.

And Mr Khrushchev.

I went ahead and received made in April of 2020.

But man, I'm glad I do, as far as I'm aware, is still still with us.

And these are two separate individuals.

These two two separate individuals living life with certain physical challenges who persuaded a court that their life had become intolerable.

Now they have the right to receive a medical assisted death while we wait for the new law to come into place.

So That takes me to what does Bill C.

seven actually do?

And it repeals if if and when passed it repeals the provision that natural death needs to be reasonably foreseeable.

That's the first point.

The second point is that if the sole underlying medical condition is mental illness, you're still not eligible to receive made.

So they make that clear if you have met the criteria for made and death is reasonably foreseeable, but then you lose capacity before the procedure.

You'll still get made based on a prior agreement with the maid provider.

So if I've gone through the assessment process and there's been a cooling off period and I I qualify to receive made and between the date that I've qualified and the date when I was supposed to receive it.

I know because of any number of reasons I'm not able to give clear eyed consent.

The one that we were talking about earlier then based on a prior agreement with your medic made provider, you will get it.

So this whole concern about loss of capacity for people who qualify will be solved by the legislation.

And then it adds some safeguards to address potential problems and reduced some of the restrictions and there were issues to deal with witnesses and things like that.

So they've made a number of amendments to streamline the process.

Some of them are a rehash of old safeguards about independent assessments and individuals informed of alternatives and the person has given serious consideration.

Those have all stayed.

So you still have to have independent assessments.

You have to be informed of alternatives.

You have to give serious consideration to them.

one of the new things here is that because death doesn't have to be reasonably foreseeable.

If you go through the process, The medical professionals determine that you meet the Carter criteria or the sorry the Bill C7 criteria.

But death is not reasonably foreseeable.

That you could live quite a long time with the condition that you have.

There's a 90 day cooling off period.

So during that 90 days it gives the person who now has approval an opportunity to consider alternatives and to explore what those might be.

So um you know, they're still trying to secure express consent from those people who are still able to give it.

But where death is not reasonably foreseeable, there's this cooling off period.

So john can you just explain that to me for just a second?

So just maybe walk me through what the cooling off period as you describe it.

Can you give me an example of how it uh with respect to how the legislation is trying to enforce it.

Can you give me example of what that would look like.

Well in many cases people who suffer from progressive M.

S.

For example who have significant debilitating conditions, They meet the Carter criteria, the bill c.

14 criteria that they're suffering intolerably.

They they're they're just worn out from trying all the different treatment modalities which are not helping their continuing to lose capacity and they just do not want to pursue Further treatment but they're not going to die within a reasonably foreseeable time, let's say 4-6 months, which was what physicians were looking at.

But with again with a lot of flexibility built in and discretion built in there, They will have to wait a 90 day period before they can actually go and have the procedure And lots of debate over you know, 90 days versus another number.

I mean you know you obviously they're trying to sort of just move this forward as you said I think and before we went live on air, just the conversation about the courts are trying to sort of understand where society is going and vice versa, right?

And it's the individual Who has a 90 day cooling off period.

But I guess they have the comfort of knowing that they're now approved for made there in the 90 day cooling off period.

And if something were to happen within that period there is a discretion to shorten it now in the N.

C.

Seven there's no need for the final consent if all the other safeguards were met.

So you know, if if everything has been moving along and the person lost capacity in that last period of time they won't have to consent at the end.

You need to have an arrangement in writing with a medical practitioner who's going to be performing the procedure.

You have to be informed of the risks of losing capacity and consent to go ahead even if you've lost capacity.

So that has to be understood as part of the relationship with the provider.

And then it goes on.

Here's one of the safeguards at the time, a person does not demonstrate refusal by words, sounds or gestures.

So if the providers now going ahead with somebody who can't consent who has previously had an agreement to proceed, even if they're not capable of consenting.

If they don't demonstrate her refusal, you go ahead.

But if they demonstrate any kind of reluctance or refusal at the time then the earlier agreement and consent becomes invalid.

That's a safeguard that's been built into this a new legislation.

And it also anticipates some situations where the medical assistance in dying doesn't involve the medical professional who is actually going to administer the drugs at the end to hasten death.

But where the individual patient or individual person is the one who's controlling that.

And if for some reason after they administer the first substance they're not able to complete the process, then a medical professional is entitled to step in and help complete it.

So The C7 deals with a lot of technical issues, but it's certainly responding to the Quebec courts decision.

You know, it didn't narrow the decision only to the reasonable foreseeability question.

It dealt with a number of other issues and some corresponding safeguards.

So that takes us to what what is the Senate?

There was a debate and a vote and I believe the vote went 66-19 in favor of some amendments.

The Senate wants advanced directives for dementia onset.

So, where you could now say if this is what's happening to me and I want made in addition to refusing treatment, you can ask your proxy to do that for you.

So the Senate wants to deal with the advanced directives issue.

Whereas House is not ready to deal with that yet.

It also wants to place an 18 month limit on the restrictions related to situations where the person's mental illness is the sole underlying medical condition.

So they want to put a sort of an 18 month sunset on that provision, which I guess will give Parliament more time to study the whole question of of mental illness?

It remains a very controversial issue for people who suffer from bipolar disorder or schizophrenia or very debilitating mental illness.

They argue that why should they be treated any differently than people who are intolerably suffering from physical disease and disability, Why should they be treated differently?

And there's a whole school of thought and I have to say that I'm I'm in that camp a little bit just having been exposed to years in the in the in the in the area of mental illness through family that you know with the right treatment modalities, the right drugs there, there's always hope and people with mental illness live with hope.

And while I respect that some people are suffering intolerably, there are others who have emerged years later after being in very difficult circumstances from a mental health point of view and might have taken their lives under Made, might have asked to have their life terminated under Made.

That would have profoundly regretted it because they didn't live to see their recovery.

So there's a tremendous amount of good arguments on both sides on the question of of mental illness.

And there is a lot of concerns about where we're heading as a society with Made and with Bill C seven from people who live marginalized in our society, whether it's from disability or whether it's socioeconomic circumstances or race based factors in terms of what they live with, what is being done to improve the circumstances of persons who live with various types of disabilities or differing abilities.

Are we too quick to be giving people with challenges an off ramp with Made and helping them into the next world?

What are we doing about providing adequate palliative care, adequate medical and rehab services?

What are we doing about access to quality jobs that pay a living wage where many people with disabilities don't have those opportunities?

What are we doing to provide access to many of life's amenities that are out of reach because of cost or physical barriers, supportive housing, freedom from institutional living.

Many people with disabilities still live in institutional settings.

What are we doing to integrate people and to be represented in all fields of endeavor that we, so many of us take for granted the opportunities that we have.

So and on religious grounds, there continue to be people who are profoundly opposed to the direction that we appear to be taking in liberalizing medical assistance in dying.

On the other hand, I think our generation, the boomers and our parents to some extent have really been pushing this in the last few years where The Rodriguez case happens in 93, Not much happens in the courts until the 2000 teens until we get to the Supreme Court in 2015.

And now we're moving at a much quicker pace in terms of expanding this charter, right?

We're moving in a very slow pace in embracing this.

But I think there's enough consensus, I'm sure through polling and otherwise, that shows that people in this country are more in favor of liberalizing people's right to exit and control the circumstances of their own death Then existed back in the early 90s where we were more divided society on that issue And, and john would you say with your, you know, looking at this uh this issue of Made, would Canada be perceived to be a leader follower, more of the same.

And in terms of other countries, would you say that there's a country that Canada might look towards to get advice or seek counsel?

Or would Canadians be somebody who could offer that advice to other countries that we found A way to try and balance the issues in C14 and trying to Consult in a very meaningful way with Canadians between C14 and now C7.

There are jurisdictions in the world where Made has been much more liberalized.

If I can use that word in the Netherlands or Switzerland where some Canadians had to go because they wouldn't qualify for Made here, but we're able to qualify there.

I think that I think that we're striking a good balance of taking our time trying to figure out the best path for us to go to study the issue.

One of the other Senate requests is that we gather more race based data as to who's signing up for Made and whether we can learn anything from that.

And the Senate is also asking that the government's five year review of Bill C 14 be accelerated that we should be studying this more.

So those are some of the things that the Senate is looking for.

We'll see whether the House agrees to any of it.

We're hearing that the House is likely not going to agree to some of the things that the Senate wants for a number of reasons.

But I would you know, to try and answer your question.

I think we've done a pretty good job.

We haven't made everybody happy that maybe that means that we're trying to to strike the right balance as we move through this.

I think inevitably this will become more liberalized as we move forward.

But can we do it at a we have to deal with the mature miners issue that's just not dealt with here.

There is a real disconnect when A 15 or 16 year old Jehovah's witness, I can say, I do not want a medic, I don't want a blood transfusion Or and refuse a treatment that will save their lives.

And the court will allow that 16 year old, articulate, Mature 16 year old to refuse treatment how it is.

We can deny that same 16 year old made if they qualified simply because of age.

You know, I love the way that you posed a number of questions at the end because I do think that that is something that you have always been very, very mindful of and how you, how you've looked at this and when we've talked about this conversation offline many many times.

And I wondered if, you know, calls to action if there's anything that you would suggest that listeners might view or might look at or read or something that might give them a sense we're going to post your email by the way on our website.

If people want to talk directly with you.

But is there something you might ask people that they might, they might look at to sort of learn more about it?

Well, there are a lot of resources available out there and if people are interested, I can provide them a resource list of cases and articles that that deal with all of these issues.

You might want to read a book called uncommon Will the Death and Life of Sue Rodriguez, which was written by a woman named lisa Bernie and Sue Rodriguez herself chronicling her life and her experiences.

There are a number of Youtube videos about Gloria Taylor struggle that led to the carter decision and I'll give you a link to find a video on that and we'll post that up on on our website.

Also, I think it's important for Canadians who are listening to this to make their views known.

If you have strong views about where we are as a country and what we're doing.

Don't wait for the pollsters to call you and maybe by chance, You know, you end up as one of those recent 1000 that are surveyed, write letters to your Mp, write letters to your member of the legislative assembly and tell them what you think about this because they do need to hear from Canadians, they do need to get a sense of of what people are supportive of and what they're not supportive of.

So I would encourage people to get active ah and educate yourself because someday you and your we're all going to go.

So at some point you're going to have to become familiar with what your options are and if you can control the circumstances surrounding your own death, I think that's a good thing.

I think to get educated about it to have conversations with your family about it, make your make your wishes known.

I think those are all really good things to do.

So you don't leave your family guessing about what it is you want.

Yeah.

And john you know it's a that is a whole other conversation that will come back to because it is super important and it's a difficult conversation to have for for so many people and you know, I say that on the basis that it's not something that's right in front of me, the people that you've talked to the three Manitoba's and their families that you helped.

I mean that was right in front of them.

It wasn't a matter of, well when I say it was a matter of choice, they had a choice and they made a choice and you help them through that.

So um I just wanna I just wanna say john um this has been uh as always when I talk to you about issues very, very enlightening.

And uh the fact that you made a very personal contribution here in Manitoba and you shared that with us.

I just want to thank you personally, that that that's that was important.

And it really brings this whole conversation about what's happening in people that are not necessarily dealing with it on a day to day basis other than perhaps what they might read or they know somebody you made it real and because you were there on the front line and what you did, and I just want to say thank you for that, thank you for your contribution today.

Thank you for all of the pro bono stuff that you do, that you're such a community uh champion and not only in the legal world, but in many other ways.

And so I just want to say thank you very much for sharing some time with me today on this podcast.

I really appreciate it.

Well, it's been great to be with you too.

And I wish you well stay healthy, stay safe.

And we'll see you on The other side of this.

Humans on Rights is recorded and hosted by Stuart Murray.

Social media marketing by the creative team at full current in Winnipeg.

Thanks also to Trixie may bite you in.

Music by Doug Edmund for more.

Go to human rights hub dot C a a production of the Sound off Media company.

Hi, I'm matt Kendell host of the Sound off podcast.

The podcast about broadcast every Week since 2016, we've been bringing on broadcast leaders to talk about their experiences and radio, what they've seen and where they believe it is all going.

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